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United States Court of Appeals for the Eleventh Circuit
June 5, 2017, Decided
No. 16-17483, Non-Argument Calendar
[*1364] WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide whether an order form faxed to a doctor by a company that supplies a medical product purchased by that doctor's patient constitutes an "unsolicited advertisement" within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. § 227(a)(5). Arriva Medical, LLC, supplies medical products to individuals by mail. To receive an insurance reimbursement, the individual who orders a product from Arriva must [**2] obtain confirmation from the individual's doctor that the product is necessary for the individual's treatment. To facilitate this process, Arriva communicates directly with that individual's doctor to request approval for the order. So after patients of The Florence Endocrine Clinic, PLLC, ordered products from Arriva, Arriva sent faxes to the clinic requesting that physicians complete an order form. The clinic complained that the faxes were "unsolicited advertisements" sent in violation of the Telephone Consumer Protection Act, id. § 227(a)(5). Arriva moved to dismiss the complaint, which the district court granted. The district court ruled that the faxes were not "unsolicited advertisements." We agree. Because the faxes do not promote the sale of Arriva products, the faxes are not unsolicited advertisements, and we affirm.
Arriva supplies medical products by mail to persons with diabetes and other diseases. Arriva markets its products to individuals who then buy the products from Arriva. If the individual would like his insurer to reimburse him for the product, the individual's doctor must confirm that the product is appropriate to treat the individual's medical condition.
After [**3] an individual orders a product, to facilitate reimbursement, Arriva requests the contact information for that individual's physician. Arriva then sends a fax to the physician explaining that a patient has ordered an Arriva product, such as a heating pad or a back brace. The fax includes an order form that the physician must [*1365] complete and return to Arriva before Arriva will ship the product to the patient. Some faxes also include a product information form that describes the requested product. For example, a fax sent on behalf of a patient who requested a back brace from Arriva included a product information form that described two different back braces that the doctor could prescribe to the patient.
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858 F.3d 1362 *; 2017 U.S. App. LEXIS 9904 **; 26 Fla. L. Weekly Fed. C 1619; 66 Comm. Reg. (P & F) 1302; 2017 WL 2415966
THE FLORENCE ENDOCRINE CLINIC, PLLC, Plaintiff-Appellant, versus ARRIVA MEDICAL, LLC, Defendant-Appellee.
Prior History: [**1] Appeal from the United States District Court for the Northern District of Alabama. D.C. Docket No. 3:16-cv-01289-AKK.
Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 2016 U.S. Dist. LEXIS 187493 (N.D. Ala., Nov. 30, 2016)
faxes, clinic, advertisements, patient, unsolicited, products, district court, order form, recipient, prescribe, concrete, requests
Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Constitutional Law, Case or Controversy, Standing, Elements, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act