On May 17, 2019, the U.S. Supreme Court announced it would not hear an appeal in Supply Pro Sorbents, LLC v. RingCentral, Inc., apparently satisfied with a Ninth Circuit ruling that the inclusion of a one-line company identifier on a fax cover page was not in violation of the TCPA’s bar on unsolicited advertisements. In Supply Pro, the Ninth Circuit affirmed the district court’s dismissal of a Junk Fax Prevention Act (“JFPA”) claim, holding that an unsolicited fax that merely contained an identifier of the sender and link to its website in an otherwise information facsimile did not run afoul of the JFPA. Persuaded by FCC guidance, the Ninth Circuit held that a “one-line identifier” is only an “incidental advertisement” that does not render the entire fax an advertisement within the meaning of the JFPA. Although the Ninth Circuit did not further delve into how to identify an “incidental advertisement,” the district court’s opinion provides further guidance. The district court noted in its decision that FCC Guidance looks to the relative size of the advertisement when assessing these types of unsolicited communications. Here, the identifier only took up one line, rendering it incidental. While the one-line identifier clearly promoted the defendant’s business, it did not rise to the level of a violation of the JFPA.
The denial of certiorari comes on the heels of a separate recent Third Circuit JFPA decision, which held that it would not expand the definition of “advertisement” in the context of the TCPA where the plaintiff received unsolicited faxes from a defendant merely seeking biographical information about healthcare providers to use in a database. The Third Circuit explained that, while the unsolicited faxes were sent with a profit motivation, “there must be a nexus between the fax and the purchasing decisions of the ultimate purchaser.” And, a fax specifically noting that “[t]here is no cost to you to participate in this data maintenance initiative. This is not an attempt to sell you anything” was held not be aimed at targeting potential buyers of the provider database.
At the end of the day, the test for what is and is not “advertising” under the JFPA still remains somewhat subjective by requiring a look into the “relative size” of the advertisement. However, the holdings in the Supply Pro and the Third Circuit decision may point to a narrowing of the construction of “advertisement” in the context of the TCPA’s bar on unsolicited advertising faxes, and confirm that such determinations can be made at the dismissal stage.