             Case: 16-17483    Date Filed: 06/05/2017   Page: 1 of 10


                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 16-17483

                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 3:16-cv-01289-AKK



THE FLORENCE ENDOCRINE CLINIC, PLLC,

                                                               Plaintiff-Appellant,
                                      versus

ARRIVA MEDICAL, LLC,

                                                             Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                           _______________________

                                  (June 5, 2017)

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

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
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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 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.

                                I. BACKGROUND

      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.



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      After 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 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.

      On four separate occasions in July 2016, The Florence Endocrine Clinic

received faxes sent by Arriva to doctors working at the clinic. In August 2016, the

clinic filed a complaint against Arriva that alleged that the faxes were “unsolicited

advertisements” sent by Arriva in violation of the Telephone Consumer Protection

Act, 47 U.S.C. § 227. The Act prohibits the use of a fax machine to send an

unsolicited advertisement unless the sender is in “an established business

relationship with the recipient,” the sender obtained the fax number from the

recipient, or the advertisement contains a notice meeting the requirements of the

statute. Id. § 227(b)(1)(C). The clinic also moved for class certification, seeking to

represent a class consisting of all recipients of faxes from Arriva on or after a




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specified date where the faxes promoted its goods or services for sale and did not

contain a compliant opt out notice.

      Arriva moved to dismiss the complaint on the grounds that the clinic lacked

standing and that the faxes were not unsolicited advertisements. Arriva argued that

the clinic lacked standing because it failed to “allege it suffered a concrete,

particularized injury as a result of Arriva’s purported TCPA violation.” It argued

that the clinic instead alleged a “bare violation of the statute, which does not satisfy

Article III.” Arriva argued in the alternative that the faxes it sent were not

“unsolicited advertisements” because the faxes were “not directed to physicians for

the purpose of marketing [Arriva] medical products” and the faxes “do not attempt

to sell anything” to the clinic.

      The district court granted the motion for failure to state a claim. It reasoned

that the clinic had standing to bring the complaint based on our precedent in Palm

Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th

Cir. 2015), but that the faxes were not “unsolicited advertisements” within the

meaning of the Act. The district court explained that the faxes were not

advertisements because the patients of the clinic had already purchased the

products described in the complaint, and nothing in the complaint “allege[d] that

Arriva intended the faxes to promote the products’ commercial availability to”

doctors at the clinic.



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                           II. STANDARD OF REVIEW

      We review the grant by a district court of a motion to dismiss de novo,

“taking as true the facts as they are alleged in the complaint.” Doe v. Pryor, 344

F.3d 1282, 1284 (11th Cir. 2003).

                                  III. DISCUSSION

      We divide our discussion in two parts. First, we explain that the clinic has

standing based on circuit precedent. Second, we explain that the faxes sent by

Arriva are not unsolicited advertisements within the meaning of the Act.

                      A. The Clinic Suffered a Concrete Injury.
      The Constitution limits the jurisdiction of the federal courts to actual cases

or controversies. U.S. Const. Art. III, § 2; see also Raines v. Byrd, 521 U.S. 811,

818 (1997). “One element of the case-or-controversy requirement is that

[plaintiffs], based on their complaint, must establish that they have standing to

sue.” Raines, 521 U.S. at 818. The doctrine of standing, “rooted in the traditional

understanding of a case or controversy, . . . developed . . . to ensure that federal

courts do not exceed their authority as it has been traditionally understood.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “[T]he ‘irreducible

constitutional minimum’ of standing consists of three elements.” Id. (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct



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of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.” Id. Before the district court, the parties disputed whether the clinic

established that it suffered an injury in fact.

      Under our precedent, the clinic suffered an injury in fact. “[W]here a statute

confers new legal rights on a person, that person will have Article III standing to

sue where the facts establish a concrete, particularized, and personal injury to that

person as a result of the violation of the newly created legal rights.” Palm Beach

Golf, 781 F.3d at 1251. The Telephone Consumer Protection Act “creates such a

cognizable right.” Id. at 1252. And, as the district court explained, in the context of

the Act, the plaintiff suffers a concrete injury because the plaintiff’s fax machine is

occupied while the unsolicited fax is being sent and the plaintiff must shoulder the

cost of printing the unsolicited fax. See id. at 1252–53. The clinic alleged in its

complaint that it received unsolicited faxes from Arriva. See The Florence

Endocrine Clinic Compl. 6, ECF No. 1. (“Plaintiff must leave its fax equipment on

and ready to receive authorized urgent communications.”). Because the clinic’s fax

machine was occupied and rendered unavailable for legitimate business while

processing the unsolicited fax, the clinic established that it suffered a concrete

injury. See id. at 1252.




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                B. The Faxes Are not “Unsolicited Advertisements.”

      The Telephone Consumer Protection Act prohibits the use of a fax machine

to send an unsolicited advertisement, subject to exceptions not relevant to this

appeal. 47 U.S.C. § 227(b)(1)(C). The Act defines “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 permission, in writing or otherwise.” Id. § 227(a)(5). Because

the faxes Arriva sent to the clinic were “unsolicited,” that is, sent without the

“prior express invitation or permission” of the clinic, id. § 227(a)(5), we must

determine whether the faxes were “advertisements.” They were not.

      To determine whether the faxes were advertisements, we must determine

whether the faxes constituted “any material advertising the commercial availability

or quality of any property,” id. “Advertising” is “[t]he action of drawing the

public’s attention to something to promote its sale.” Advertising, Black’s Law

Dictionary 59 (8th ed. 2004); see also Sandusky Wellness Ctr., LLC v. Medco

Health Sols., Inc., 788 F.3d 218, 222 (6th Cir. 2015) (“So to be an ad, the fax must

promote goods or services to be bought or sold, and it should have profit as an

aim.”); Advertise, Webster’s New International Dictionary 39 (2d ed. 1961)

(defining advertising as “to call public attention to, esp. by emphasizing desirable

qualities, in order to arouse a desire to purchase, invest, patronize, or the like”);



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Advertise, Oxford English Dictionary (online ed. 2017) (defining advertise as “to

describe or present (a product, service, or the like) in order to promote sales”). To

fall within the Act, the fax must draw attention to the “commercial availability or

quality” of Arriva products to promote their sale.

      The faxes do not promote the sale of Arriva goods because, as the district

court explained, the fax only requests information to complete an order already

made. Arriva sent the faxes to the physician of the patient who requested the

product. Each fax included an instruction page that explained which patient

requested the Arriva product and requested that the physician complete an attached

order form. As the district court explained, these order forms “operate as vehicles

for patients to provide Medicare with proof that they have a medical need for the

product[s]” that they requested. The clinic neither alleged that Arriva intended that

the faxes induce the physicians at the clinic to prescribe Arriva products to other

patients that had not already requested the products from Arriva nor that the faxes

request that the doctors purchase the products. To the contrary, the complaint

alleges that “Arriva engages in aggressive direct marketing of its products to

patients,” not the doctors. The faxes do not “promote the sale” of any Arriva

product, but instead request information from physicians in connection with orders

already placed by patients of those physicians.




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      The decisions cited by the clinic do not persuade us otherwise. Those

decisions do not involve faxes sent on behalf of a patient who already ordered a

product, but instead involve transmissions that encouraged the recipient of the fax

to prescribe the drug to patients or that invited the recipient to attend a program

where the products or services would be promoted. See, e.g., Physicians

Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp. 3d 482, 489, 499 (W.D.

Mich. 2015) (refusing to grant summary judgment because a question of fact

existed regarding whether a fax that invited the recipient to a free seminar was an

advertisement); Bais Yaakov of Spring Valley v. Alloy, Inc., 936 F. Supp. 2d 272,

282–83 (S.D.N.Y. 2013) (explaining that a fax that requested that the recipient sign

up for a free television service financed by commercials played during the news

program was an advertisement because, like a free seminar, it was part of an

overall campaign to sell property, goods, or services); cf. Elan Pharm. Research

Corp. v. Emp’rs Ins. of Wausau, 144 F.3d 1372, 1378 n.11 (11th Cir. 1998)

(explaining in a different context that a communication intended to encourage a

doctor to prescribe a drug to a patient would qualify as advertising). The clinic

cites no decision that determines that a fax requesting that a physician complete an

order form at the behest of a specific patient qualifies as an “advertisement” under

the Act.




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      The faxes sent by Arriva to the clinic are not “advertisements” within the

meaning of the Act. Each fax relates to a specific order already placed by a patient

of the clinic and requests only that the doctor of the patient fill out an order form to

facilitate a purchase made by that patient. The complaint does not allege that the

purpose of the faxes was to induce the clinic to purchase Arriva products, nor does

it allege that the purpose of the faxes was to induce the physicians to prescribe

those products to patients who had not already requested those products from

Arriva. We agree with the district court that the complaint filed by the clinic fails

to state a claim on which relief may be granted.

                                 IV. CONCLUSION

      We AFFIRM the dismissal of the complaint.




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