PAULA SMITH , Executor for the Estate of DR . RICHARD L. THALMAN v. FIRST HOSPITAL LABORATORIES , INC ., doing business as FSS OLUTIONS

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1540
PAULA S MITH , Executor for the Estate of
DR . R ICHARD L. THALMAN ,
Plaintiff-Appellant,
v.
F IRST HOSPITAL LABORATORIES , I NC .,
doing business as FSS OLUTIONS ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:21-cv-543 — Nancy J. Rosenstengel, Chief Judge.
____________________
A RGUED NOVEMBER 8, 2022 — DECIDED A UGUST 9, 2023
____________________
Before S YKES , Chief Judge, and W OOD and S CUDDER , Circuit
Judges.
SCUDDER , Circuit Judge. FSSolutions faxed Dr. Richard
Thalman several times to ask him to join its network of pre-
ferred medical providers and administer various employ-
ment screening and testing services to its clients. Thalman de-
clined the invitation and instead invoked the Telephone

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2 No. 22-1540
Consumer Protection Act to sue FSSolutions for sending him
unsolicited advertisements. The district court dismissed the
complaint after finding that the faxes were not “unsolicited
advertisements” within the meaning of the TCPA because
they merely asked to purchase Thalman’s own services rather
than inviting him to buy something from FSSolutions.
We agree that a fax must directly or indirectly encourage
recipients to buy goods, services, or property to qualify as an
unsolicited advertisement. But Thalman plausibly alleged
that FSSolutions’s faxes did just that by promoting the com-
pany’s network of preferred medical providers, a network
that would bring Thalman new business in exchange for a
portion of the underlying client fees. So we reverse and re-
mand.
I
A
FSSolutions provides health monitoring and screening
services through a network of medical providers who serve
as independent contractors. In May 2021 the company sent a
fax inviting Thalman—a chiropractor and medical examiner
in Carbondale, Illinois—to join its network of providers.
FSSolutions’s cover letter stated that its invitation was “not
solicitation.” Instead, the company claimed, it simply sought
to “utilize your services” and “send our donors to you for oc-
cupational health services.” Included in the fax was a Pro-
vider Agreement for Thalman to sign and a fee schedule with
proposed pricing for various medical services that he might
provide to clients of FSSolutions. The contract explained that
FSSolutions—and not the underlying clients themselves—
would pay Thalman at a fixed rate for each service rendered

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No. 22-1540 3
to one of the company’s clients. By way of example, FSSolu-
tions offered to pay $15 for collecting a urine sample and $20
for a breath alcohol test.
The proposed contract did not explain how FSSolutions
would profit from the arrangement, but it did bar Thalman
from billing clients directly or disclosing his fixed fees to
them. It also incentivized Thalman to stick with the proposed
pricing: if he matched that pricing, FSSolutions would list him
as a “Preferred Provider” and route clients to him. On the
other hand, if Thalman opted to increase his pricing over the
proposed fees, the company suggested it would list him on its
network but would not refer clients to him. The company
asked Thalman to agree with the proposed pricing or to “add
your pricing” and return the forms “ASAP so we can add you
to our database.”
FSSolutions sent a second fax to Thalman a month later in
June, this time asking him to “confirm that you have received
the FSSolutions contract.” The company sent the second fax
with the same cover letter and another copy of the Provider
Agreement and proposed fee schedule.
Days later, and aggravated by the faxes, Thalman filed a
putative class action in the Southern District of Illinois. On top
of a number of state law claims, he alleged that both faxes vi-
olated the TCPA because they constituted an “unsolicited ad-
vertisement” barred by the statute. See 47 U.S.C.
§ 227(b)(1)(C). And he claimed that FSSolutions had sent the
faxes as part of a “mass broadcasting” to dozens of other
healthcare providers in Illinois.

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4 No. 22-1540
B
The district court granted FSSolutions’s motion to dismiss
the complaint. As the district court saw it, the TCPA extends
liability to unsolicited faxes that promote the sale of the
sender’s goods, services, or property, if those products are
available for purchase immediately. That posed a problem for
Thalman because the district court interpreted FSSolutions’s
faxes as doing something different—namely, offering to pur-
chase medical services from Thalman and to hire him as a con-
tractor. So the complaint failed to state a plausible claim for
relief under the TCPA. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). After dismissing Thalman’s sole federal claim,
the district court declined to exercise supplemental jurisdic-
tion over the remaining state law claims.
While this appeal was still pending, Thalman passed away
and Paula Smith, the executor of his estate, stepped in as the
plaintiff. See Fed. R. App. P. 43(a)(1).
II
A
We view the complaint in the light most favorable to Thal-
man, accepting all well-pleaded facts as true and drawing all
reasonable inferences in his favor. See Burke v. 401 N. Wabash
Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013). His complaint
can survive a motion to dismiss if it contains enough factual
allegations to state a claim for relief that is plausible. See
Twombly, 550 U.S. at 570. The only question before us, then, is
whether Thalman plausibly alleged that the faxes were “un-
solicited advertisement[s]” prohibited by the TCPA. See 47
U.S.C. § 227(b)(1)(C).

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No. 22-1540 5
The TCPA defines an unsolicited advertisement as “any
material advertising the commercial availability or quality of
any property, goods, or services which is transmitted to any
person without that person’s prior express invitation or per-
mission, in writing or otherwise.” 47 U.S.C. § 227(a)(5),
(b)(1)(C).
The cardinal rule of statutory interpretation is that words
in a statute take their “ordinary, contemporary, common
meaning,” allowing us to turn to dictionary definitions for
guidance. Delaware v. Pennsylvania, 143 S. Ct. 696, 705 (2023)
(quoting Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014)).
Most dictionaries define “advertising” as the act of drawing
the public’s attention to a product to promote its sale. See Flor-
ence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362,
1366–67 (11th Cir. 2017) (collecting definitions to interpret the
TCPA). The TCPA additionally requires that the fax advertise
by reference to the good, service, or property’s “commercial
availability or quality.” 47 U.S.C. § 227(a)(5). The qualifier
“commercial” tells us that the advertising must relate to com-
merce or have profit as a primary aim. See Sandusky Wellness
Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 222 (6th Cir.
2015) (defining “commercial” as it is used in the TCPA). An
unsolicited fax advertisement under the TCPA is therefore a
fax that promotes the sale of a good, service, or property, with
profit as an aim, by drawing attention to the fact that the good,
service, or property is available for purchase or of a desirable
quality.
FSSolutions urges us to winnow this definition further. By
the company’s measure, a fax qualifies as an advertisement
only if it offers to sell products—not if it offers to buy prod-
ucts or to otherwise create a commercial relationship with the

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6 No. 22-1540
recipient. FSSolutions presents this distinction as a binary:
promoting the sale of a product is advertising, but an offer to
buy products or to enter into a commercial relationship is not.
FSSolutions also suggests that we should accept the charac-
terization of the proposed transaction as it is presented in the
fax itself. So if the fax describes the transaction purely as an
effort to buy from the reader, it is not, in the company’s view,
an advertisement.
We agree that a fax is an unsolicited advertisement only if
it promotes the sale—and not simply the purchase—of goods,
services, or property. That conclusion follows from the statu-
tory requirement that the faxed materials promote the com-
mercial availability or quality of a good, service, or property.
An offer to buy a product will not, without more, advertise
that product’s quality or its commercial availability. The
faxed materials must therefore provide an objective basis for
recipients to conclude they are being encouraged to buy, and
they must do so by pointing to the commercial availability or
quality of the goods, services, or property at issue. See, e.g.,
Mauthe v. Optum Inc., 925 F.3d 129, 133 (3d Cir. 2019) (requir-
ing the fax to “convey the impression … that a seller is trying
to make a sale” (alteration in original) (quoting Mauthe v. Nat’l
Imaging Assocs., 767 F. App’x 246, 249 (3d Cir. 2019)));
Sandusky Wellness Ctr., 788 F.3d at 222 (giving examples of un-
solicited advertisements).
But our analysis does not end there. In some narrow situ-
ations a fax offering to buy products from or to do business
with the recipient may also amount to an offer to sell services
to that same recipient—and therefore qualify as an unsolic-
ited advertisement. Two examples help drive our point home.
Suppose, for instance, that a pawnshop acquires space in a

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No. 22-1540 7
newspaper to promote its business of buying items of value—
jewelry, rare coins, antiques, used guitars, and the like. Or, to
take another example, suppose that a scrapyard buys space in
an industrial trade magazine to plug its willingness to buy
metal—wrecked cars, worn aluminum siding, old refrigera-
tors, microwave ovens, and other common items. Everyone
would say the businesses have offered to buy goods, yet no-
body would hesitate to call the promotions advertisements.
Recognize, then, what these simple examples illustrate:
the pawnshop and scrapyard have simultaneously offered to
buy goods and also advertised their own commercial “ser-
vice” to be acquired by people or businesses willing to sell
certain goods of value. See Service, Black’s Law Dictionary (11th
ed. 2019) (defining a “service” in part as “the performance of
some useful act or series of acts for the benefit of another,
[usually] for a fee”). We would reach the exact same result—
that the businesses are advertising—if they opted to promote
their services by blasting fax messages far and wide rather
than by using space in a newspaper or trade magazine.
Nor would our analysis change if the fax message itself
denied being an advertisement or other form of solicitation.
Indeed, a fax may meet all the requirements we have dis-
cussed here even if the sender disavows any intention to so-
licit purchases or characterizes the message as an offer to en-
ter into a commercial relationship. The most effective adver-
tisements sometimes fall short of an express solicitation. We
recognized as much in Ira Holtzman, C.P.A., & Associates v.
Turza, 728 F.3d 682 (7th Cir. 2013), when we concluded that
Gregory Turza’s faxed newsletters—sent to prospective legal
clients and containing descriptions of his fields of expertise
and contact information—advertised his services within the

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8 No. 22-1540
meaning of the TCPA even though they purported to give
“mundane [business] advice.” Id. at 683, 685–87. What mat-
tered was that the newsletters declared the availability of
Turza’s legal services in a “promotional” way, notwithstand-
ing his efforts to prepare and present the newsletters as being
merely informational. Id. at 686–87.
Today’s case does not require us to pinpoint this dividing
line between faxes that advertise in subtle or indirect ways
and faxes that are not advertisements at all. At the end of the
day, courts must engage in a holistic examination of the faxed
materials to determine whether they meet the requirements
we have articulated here.
B
Returning to the case before us, a recipient like Thalman
could plausibly view FSSolutions’s faxes as an unsolicited ad-
vertisement plugging the company’s network of preferred
medical providers.
The most difficult aspect of Thalman’s claim is whether
the faxes advertised a “service” within the meaning of the
TCPA. It would be difficult for us to conclude that FSSolutions
had engaged in advertising if the company merely offered to
add Thalman’s information to a list of providers. But that is
not all that FSSolutions proposed. Recall the details of the ex-
change proposed in the faxes: if Thalman matched the com-
pany’s suggested pricing, then FSSolutions would route new
clients to him and invoice those clients directly for his ser-
vices, paying him according to his fee schedule. The contract
also provided that Thalman could not bill clients directly or
disclose to them his fees—implying that what FSSolutions

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No. 22-1540 9
charged clients was greater than what a preferred provider
would receive.
A reasonable inference from these terms, then, was that
Thalman, by accepting the discounted fees set forth in the fee
schedule for preferred providers, would access new streams
of revenue from new clients in exchange for paying FSSolu-
tions a cut of the total amount due from each client. In effect,
Thalman plausibly alleged that FSSolutions offered to sell him
access to its network of preferred providers in exchange for a
fee—specifically, a portion of the underlying client payments.
The network FSSolutions promoted looks akin to a lead-gen-
eration or brokerage service, both of which involve routing
new business or products to the purchaser in exchange for
some kind of fee. We have no doubt that such an activity,
much like the pawnshop or the scrapyard, would qualify as a
“service” within the meaning of the TCPA’s definition of “un-
solicited advertisement.”
From there our analysis simplifies considerably. A recipi-
ent could conclude the faxes were promotional. Not only did
the faxes urge Thalman to join the network straight away, but
Thalman alleged in his complaint that they were part of a
“mass broadcasting” campaign aimed at encouraging other
providers to join the network too. The faxes themselves sup-
port his assertion. The messages were impersonal: the first
one contained a letter addressed “[t]o whom it may concern”
while the second simply said “hello.” Nor did the company
appear to know what services Thalman provided. In its first
message the company told Thalman it had “an occasional
need for an on-site drug collection, if that is a service you of-
fer.” In the second message, it said that “we were recently in-
formed that our services and pricing do not match what you

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10 No. 22-1540
offer” and asked him to update his “site profile” with accurate
information. The fair import from all these details is that the
faxes were part of an impersonal, widely disseminated pro-
motional campaign.
Thalman also plausibly alleged that the faxes advertised
the network by pitching both its commercial availability and
quality. The faxes informed Thalman that he could and
should sign the contract “ASAP,” making clear the service
was available to him immediately. The faxes implied, too, that
the network was a high-quality service by alluding to the
company’s large numbers of clients, which FSSolutions ap-
proximated as being in the “thousands”—a message the com-
pany undoubtedly conveyed to help Thalman and other re-
cipients see membership as yielding new, lucrative streams of
revenue. FSSolutions’s proposed fee schedule may well have
conveyed the same message by providing Thalman with a
more concrete picture of how he stood to profit.
A recipient could fairly construe the faxes as proposing a
“commercial” transaction as well. The faxes suggested, after
all, that FSSolutions would charge preferred providers by
pocketing some of the underlying fees in exchange for routing
new business to them. Taken together, these aspects of the fax
messages are enough for Thalman’s claim to proceed to sum-
mary judgment.
Our conclusion aligns with our case law. Holtzman v. Turza
is a good example. We explained there that attorney Gregory
Turza’s faxed newsletters qualified as advertisements even
though the portion of the newsletters that did the advertising
(by displaying his contact information and legal services)
took up relatively little space and was “incidental” to his free
business advice. See 728 F.3d at 683, 686, 688. Turza’s indirect

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No. 22-1540 11
advertising was still advertising for which he could be held
liable under the TCPA.
The same rationale leads us to reverse here. Our analysis
does not end just because FSSolutions assured Thalman it was
not engaged in solicitation. Nor are we required to accept the
faxes’ own gloss on the transaction—in this case, that FSSolu-
tions’s sole purpose was to buy services from Thalman, and
not the other way around. The TCPA instead directs us to con-
sider the portions of the faxes that indirectly encouraged
Thalman to buy FSSolutions’s services in exchange for eco-
nomic value. And that is what we have done.
For that reason, we do not need to consider whether Thal-
man’s alternative legal theory—that FSSolutions advertised
its confidential client lists for Thalman to purchase—passes
muster. Thalman’s allegations relating to the network of med-
ical providers are enough to state a claim for relief.
C
FSSolutions presses a different view of the faxes. It reads
them narrowly, as merely offering to enter into a commercial
relationship in which FSSolutions would acquire Thalman’s
services as a hired contractor. For support FSSolutions analo-
gizes to cases where courts rejected TCPA liability for faxes
offering to hire recipients or pay them to take a survey. Ac-
cording to the company, those cases illustrate that similar in-
vitations to do business are not advertising. See, e.g., Advanced
Dermatology v. Fieldwork, Inc., 550 F. Supp. 3d 555, 566 (N.D.
Ill. 2021) (“A fax offering an incentive for the recipient’s par-
ticipation in a survey is no more an advertisement than a fax
informing the recipient that the sender is looking to purchase
a particular consumer good, hire a babysitter or lawn care, or

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12 No. 22-1540
accept bids from contractors for a job—both types of fax un-
doubtedly propose a ‘commercial transaction,’ but neither ad-
vertises the ‘commercial availability or quality of any prop-
erty, goods or services.’”); Payton v. Kale Realty, LLC, 164 F.
Supp. 3d 1050, 1061–62 (N.D. Ill. 2016) (collecting cases in the
recruitment context).
Although the company offers a reasonable perspective, we
are not persuaded. To be sure, a bare offer to buy goods from
the recipient or to do business with the recipient is not an ad-
vertisement under the TCPA. And had the faxes done no more
than inquire whether Thalman was interested in providing
services to some of FSSolutions’s clients, our outcome today
might be different. But the faxes did not stop there. Instead,
FSSolutions used the faxes (at least in part) to pitch the com-
pany’s network, including by approximating the number of
clients at stake and by attaching a fee schedule itemizing the
revenue Thalman would receive as a preferred provider for
providing particular services. That tips Thalman’s complaint
over Twombly’s plausibility line: he has plausibly alleged that
the network is a “service” and that the faxes widely broad-
casted that service’s availability and quality for purchase. So
Thalman has stated a claim under the TCPA.
III
We are mindful that many plaintiffs’ attorneys view the
TCPA opportunistically. See Craftwood II, Inc. v. Generac Power
Sys., Inc., 63 F.4th 1121, 1123–24 (7th Cir. 2023) (expressing
concern that the TCPA “so handsomely reward[s] litigious-
ness over annoyances that have been greatly diminished by
changes in technology”). So be careful not to overread what
we are saying. Our opinion bears on a slice of fax messaging—
unsolicited faxes that an objective recipient would construe as

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No. 22-1540 13
urging the purchase of a good, service, or property by empha-
sizing its availability or desirability. And of course, the TCPA
regulates only fax messages and other forms of telephonic
communication. The statute does nothing to prevent compa-
nies like FSSolutions from advertising through other, non-tel-
ephonic means.
For these reasons, we REVERSE and REMAND the case
for proceedings consistent with this opinion.

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