Health One Medical Center, Eastpointe P.L.L.C., a Michigan Professional Limited Liability Company, individually and as the representative of a class of similarly-situated persons, Plaintiff-Appellant,
Mohawk, Inc., Defendant, Bristol-Myers Squibb Company; Pfizer Inc., Defendants-Appellees.
from the United States District Court for the Eastern
District of Michigan at Ann Arbor. No. 5:16-cv-13815-Judith
E. Levy, District Judge.
Phillip A. Bock, David M. Oppenheim, BOCK, HATCH, LEWIS &
OPPENHEIM, LLC, Chicago, Illinois, for Appellant.
Bogo-Drnst, Michele Odorizzi, Christopher J. Ferro, MAYER
BROWN LLP, Chicago, Illinois, for Appellee Bristol-Myers
Squibb Company. Rebecca J. Schwartz, Molly S. Carella, SHOOK,
HARDY & BACON L.L.P., Kansas City, Missouri, for Appellee
Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, CIRCUIT JUDGE.
questions seem to arise only in class-action lawsuits. Here,
a seller of prescription drugs sent junk faxes to various
medical providers, advertising the seller's prices on
various drugs. The question presented is whether-for purposes
of the Telephone Consumer Protection Act, which makes it
unlawful "to send . . . an unsolicited
advertisement" to a fax machine-the manufacturers of
those drugs "sent" those faxes even though they
knew nothing about them. The district court answered no, and
so do we.
Medical, a pharmaceutical wholesaler, sent two unsolicited
faxes to Health One Medical Center. The faxes listed
Mohawk's contact information and offered discount prices
on 14 different drugs, including one manufactured by
Bristol-Myers Squibb (Bristol) and another by Pfizer. Health
One later brought this putative class-action lawsuit, at
first asserting claims only against Mohawk, which never
answered the complaint. Hence the district court entered a
default judgment against it. Health One then amended its
complaint to assert claims against Bristol and Pfizer-largely
on the theory that they had "sent" the unsolicited
faxes simply because the faxes mentioned their drugs. Those
defendants filed motions to dismiss under Civil Rule
12(b)(6), which the district court granted. We review that
decision de novo. Doe v. Miami Univ., 882 F.3d 579,
588 (6th Cir. 2018).
relevant text of the Act is straightforward:
It shall be unlawful for any person within the United States
. . . to use any telephone facsimile machine, computer, or
other device to send, to a telephone facsimile machine, an
47 U.S.C. § 227(b)(1)(C). Thus, to be liable under this
provision, a defendant must "use" a fax machine or
other device "to send . . . an unsolicited
advertisement" to another fax machine. We focus here on
the word "send, " which the statute does not
define. Hence we give "send" its ordinary meaning.
United States v. Zabawa, 719 F.3d 555, 559 (6th Cir.
2013). "Send" has two relevant meanings when used
(as here) as a transitive verb. The first is "[t]o cause
to be conveyed by an intermediary to a destination[.]"
The American Heritage Dictionary 1642 (3d ed. 1992). For
example, one might send a letter by courier, or by the U.S.
Postal Service. A second meaning is "[t]o dispatch, as
by a communications medium[.]" Id. For example,
one might "send a message by radio[, ]"
id., or-more to the point here-send a message by
Bristol and Pfizer neither caused the subject faxes to be
conveyed, nor dispatched them in any way. Instead only Mohawk
did those things. Bristol and Pfizer therefore did not
"send" the faxes and thus have no liability for
Health One argues that Bristol and Pfizer were each a
"sender" of the faxes, as an FCC regulation defines
that term. That regulation purports to define
"sender" for purposes of the Act as "the
person or entity on whose behalf a facsimile unsolicited
advertisement is sent or whose goods or services are
advertised or promoted in the unsolicited
advertisement." 47 C.F.R. § 64.1200(f)(10). Health
One says that the drug companies here were
"senders" of the Mohawk faxes because the faxes
quoted Mohawk's prices for their drugs and thus (Health
One says) the faxes "advertised or promoted" the
drugs. The latter contention is dubious even on its own
terms: the faxes touted Mohawk's discounted "AUGUST
PRICES" for the drugs, rather than any feature or
quality of the drugs themselves.
more importantly, Health One reads the regulation woefully
out of context. A regulation's context of course includes
the statutory text it aims to implement. See Utility Air
Regulatory Grp. v. EPA, 134 S.Ct. 2427, 2442 (2014).
Here, the statutory text makes clear that, to send a junk fax
in violation of 47 U.S.C. § 227(b)(1)(C), one must
"use" a fax machine or other device to convey or
dispatch an unsolicited advertisement to another fax machine.
Those requirements-the use of a fax machine or ...