Bpp v. CaremarkPCS Health, L.L.C., doing business as CVS Caremark; Welltok Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 21-3791
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BPP
Plaintiff - Appellant
v.
CaremarkPCS Health, L.L.C., doing business as CVS Caremark; Welltok Inc.
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 20, 2022
Filed: November 16, 2022
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Before GRUENDER, MELLOY, and ERICKSON, Circuit Judges.
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GRUENDER, Circuit Judge.
BPP sued CaremarkPCS Health, L.L.C. and Welltok, Inc., alleging a violation
of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. The district

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court1 granted Caremark and Welltok’s motion for summary judgment, and BPP
appealed. We affirm.
I.
BPP is a periodontal care provider in the St. Louis, Missouri area. Caremark
is a pharmacy benefits manager (“PBM”). Caremark’s clients are entities that
sponsor group health plans, including insurers, third-party administrators, and
employer sponsors. Caremark administers the pharmacy networks where
policyholders may fill prescriptions, conducts eligibility review for benefits, and
processes claims. Caremark does not sell prescription medications or services to
healthcare providers or their patients.
In October 2019, Caremark implemented new opioid-coverage-limitation
options that its health-plan-sponsor clients could institute. One of these options was
a three-day supply limit for patients under the age of twenty. Caremark contracted
with Welltok to send a fax announcing this supply-limitation option to more than
55,000 healthcare providers who had previously prescribed opioids to adolescent
patients. BPP was one of the recipients of Caremark’s fax.
The fax explained that “our clients have the option to apply a 3-day supply
limit on opioids prescribed for patients who are: 19 or younger; [c]onsidered opioid
naïve . . . and [b]eing prescribed short-acting opioids, including immediate release
(IR) and immediate release combination opioid products.” The fax also noted that
“[o]pioid prescriptions for cancer, sickle cell disease or palliative care will be
exempt from the 3-day supply limit” and that providers “can request prior
authorization for patients whose clinical diagnosis may require a longer day supply
for ongoing therapy.” Caremark’s marketing department reviewed a draft of the fax
before it was sent to providers.
1 The Honorable Matthew T. Schelp, United States District Judge for the
Eastern District of Missouri.

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BPP sued Caremark and Welltok, alleging that Caremark’s fax was an
“unsolicited advertisement” in violation of the Telephone Consumer Protection Act.
See 47 U.S.C. § 227(b)(1)(C). Caremark and Welltok moved for summary
judgment, which the district court granted.
II.
We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in its favor. Onyiah v. St. Cloud State Univ., 5 F.4th 926, 930
(8th Cir. 2021). We affirm because there is no genuine dispute of material fact and
Caremark and Welltok are entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Lindeman v. St. Luke’s Hosp. of Kan. City, 899 F.3d 603, 605 (8th Cir.
2018).
The TCPA makes it unlawful to fax an unsolicited advertisement. 47 U.S.C.
§ 227(b)(1)(C). An “unsolicited advertisement” is defined 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
permission, in writing or otherwise.” 47 U.S.C. § 227(a)(5). The TCPA does not
bar the unsolicited sending of faxes that lack commercial components. See
Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 223 (6th
Cir. 2015) (“[T]he Act unambiguously defines advertisements as having commercial
components . . . .”); Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967,
25,973 (May 3, 2006) (“[F]acsimile communications that contain only information,
such as industry news articles, legislative updates, or employee benefit information,
would not be prohibited by the TCPA rules.”).
BPP first argues that the district court incorrectly interpreted the TCPA’s
definition of an unsolicited advertisement. The district court applied the Sixth
Circuit’s interpretation in Sandusky: “[a]n advertisement is any material that

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promotes the sale (typically to the public) of any property, goods, or services
available to be bought or sold so some entity can profit.” 788 F.3d at 222. By
contrast, BPP argues that to advertise means “to give public notice of” a commercial
good or service. Accordingly, BPP contends that any fax that gives public notice of
a commercial good or service is a prohibited unsolicited advertisement, regardless
of whether it promotes a sale or whether the sender was motivated by profit.
Because Caremark’s fax gave notice of its PBM services, BPP argues that the fax
was unlawful.
We disagree with BPP’s proposed interpretation of unsolicited advertisement.
The TCPA does not ban all faxes that contain information about commercial goods
or services, as BPP would have it. Rather, it bans faxes that “advertis[e] the
commercial availability or quality of any property, goods, or services.” See 47
U.S.C. § 227(a)(5). The fax itself, and not just the underlying property, good, or
service, must have a commercial component or nexus to constitute an unsolicited
advertisement. We therefore agree with the Sixth Circuit that the TCPA
“unambiguously defines advertisements as having commercial components” and
that “to be an ad, the fax must promote goods or services to be bought or sold, and
it should have profit as an aim.” Sandusky, 788 F.3d at 222.
Next, BPP contends that the district court should have deferred to the Federal
Communications Commission’s (“FCC”) interpretation of the term “unsolicited
advertisement” under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843 (1984). See also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 980-81 (2005) (noting the FCC’s “authority to promulgate the
binding legal rules” implementing the TCPA). BPP is incorrect. Under Chevron,
courts are required to defer to an agency’s interpretation only if the statutory term at
issue is ambiguous. 467 U.S. at 843. As previously described, the term “unsolicited
advertisement” in the TCPA is not ambiguous. See 47 U.S.C. § 227(a)(5); Sandusky,
788 F.3d at 222. Regardless, the FCC’s guidance does not support BPP’s
interpretation of the statute. The FCC has explained that a fax is not an unsolicited

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advertisement when its primary purpose is informational, rather than to promote
commercial products. 71 Fed. Reg. at 25,973.
Lastly, BPP argues that even if we apply Sandusky’s interpretation of
unsolicited advertisement, there is still a genuine dispute as to whether Caremark
intended the fax to promote the sale of its PBM services or prescription drugs.
However, the language of the fax and the nature of Caremark’s business demonstrate
that the fax did not promote the sale of any goods or services. The fax simply
informed healthcare providers that they had the option to impose a three-day limit
on opioid prescriptions for certain patients. Moreover, Caremark sells its PBM
services only to insurance-plan sponsors. It does not sell any goods or services to
doctors or their patients. Therefore, Caremark could not have intended its fax to
induce doctors to pay for some other unnamed products or services. Cf. Physicians
Healthsource, Inc., v. Boehringer Ingelheim Pharms., Inc., 845 F.3d 92, 95-97 (2d
Cir. 2017) (holding that a fax inviting physicians to a dinner that was free but
included a pitch to buy the sender’s products was an unsolicited advertisement).
Nevertheless, BPP claims that there is a genuine factual dispute here because
Caremark may have intended its fax to cause providers to encourage their patients
to switch to insurance providers that use Caremark as their PBM. According to BPP,
this supposed business rationale, if found to exist, would indicate a sufficiently
commercial nexus such that the fax would be unlawful under Sandusky’s
interpretation of unsolicited advertisement. See 788 F.3d at 222. BPP contends that
the involvement of Caremark’s marketing department in drafting the fax supports its
view. However, Caremark’s marketing department reviews informational
communications as well as commercial communications. Therefore, the
involvement of the marketing department does not support an inference of
commercial purpose, and BPP otherwise does not point to facts supporting its
speculative theory.
Moreover, even if BPP could prove that Caremark’s fax had some minor or
remote commercial purpose, its claim would still fail. To consider a fax to be an

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unlawful advertisement on the basis of a remote or minor commercial purpose would
vastly broaden the TCPA’s definition of unsolicited advertisement. Almost any fax
could economically benefit the sender through branding, goodwill, or other indirect
effects, regardless of whether that fax would be plainly understood as promoting a
commercial good or service.
In sum, no reasonable jury could find that the fax was an “unsolicited
advertisement” under the TCPA, and the district court’s grant of summary judgment
to Caremark and Welltok was proper.2
III.
For the foregoing reasons, we affirm.
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2 The parties also dispute whether Caremark’s fax was exempt from the TCPA
as a “transactional notice.” See 71 Fed. Reg. at 25,972-25,973. Because we hold
that Caremark’s fax was not an unsolicited advertisement, we need not consider that
issue.

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