Sixth circuit court of appeals overrules trial court, finds that telemarketers are telemarketers

In a ruling that should not have surprised anyone, the sixth circuit court of appeals just released an opinion finding that those who telephone solicit for others, are telemarketers, just like 47 CFR § 64.1200(f)(12) says: The term telemarketer means the person or entity that initiates a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

Not rocket science, but a patron saint of telemarketers got it wrong and the plaintiff in Lyngaas v. United Concordia Cos., Inc., No. 24-1777, 2025 WL 1625517 (6th Cir. June 9, 2025) had to take the issue up on appeal.

The setup is that Mr. Lyngaas is a dentist and he contracted with UCCI to participate in a referral network to get clients. UCCI did more than that, however, they also

negotiated exclusive deals with these vendors in exchange for promotion of the vendors’ products, and UCCI memorialized the deals in “marketing” and “strategic” agreements. As part of the VAP, UCCI sent out benefit materials via fax [to dentists like Mr. Lyngaas].

It's your classic Seller-Telemarketer relationship, the Seller pays a Telemarketer to advertise via the phone which falls squarely under the TCPA. In your classic Seller-Telemarketer relationship, the telemarketer is getting paid to deliver the phone calls, not profiting from the resulting sales. But this doesn't stop the patron saints of telemarketing, who said that because UCCI didn't cash in from the resulting sales, UCCI wasn't advertising.

The district court ruled in favor of UCCI, reasoning that the faxes were not advertisements because UCCI's profit incentive was too remote.

The sixth circuit dismantled this argument at the top of their opinion:

We hold that UCCI's faxes were advertisements under the TCPA. UCCI facially promoted direct sales by its third-party partners, and its profit motive was sufficiently direct because it sent the promotions as part of negotiated marketing agreements. Our precedent further supports this conclusion by placing liability for third-party sales on the sender of a fax, rather than the seller of the product.

This article should have been short. UCCI was paid by third parties to deliver advertising of the third party's products. Faxes under the TCPA are a little different in that it is the advertising without consent that is regulated (vs solicitation) but the definition of unsolicited advertisement is broader than telephone solicitation:

An “unsolicited advertisement” is “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.” [the distinction is subtle because telephone solicitation is encouraging the purchase of goods or services, which is the generally the point of advertising]

But even appellant courts want to give weasel room for telemarketers, which frustrates the point of the telephone consumer protection act:

We have interpreted this language to require that an advertisement be commercial in nature . . . Specifically, in Sandusky, we held that an ad (1) “must promote goods or services to be bought or sold,” and (2) “should have profit as an aim.” . . . Also, the sender's profit motive must be sufficiently direct. “The fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.”

Fortunately the appeals court followed the law in this case. The faxes were advertisements because (1) they were facially promotional, and (2) UCCI demonstrated a sufficiently direct profit interest by contracting with its marketing partners. The contract to send the advertisements is the profit motive. Duh!

While we hold that TCPA liability applies to the sender of a third-party ad who profits indirectly, the reasoning is much weaker for a sender that truly has no profit motive, such as the district court's hypothetical do-gooder who transmits advertisements without any financial benefit. The facts here, especially when taken in the light most favorable to Lyngaas, easily clear the bar for liability under the TCPA. UCCI has presented no explanation for their marketing deals apart from profit.

The sixth circuit shredded the trial court, not giving it any cover for a blatant act of protecting a telemarketer and is exactly why you might need an appellant lawyer some day.

Got a Case Like This?

If you’ve had similar problems with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.

Are telemarketers bothering you in Washington, Oregon, or Montana?

I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.

📞 Call: 206-800-6000 / 971-800-6000

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Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.

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