3rd Circ. Rules Survey Was Not an Advertisement under TCPA

Wednesday, October 7, 2020

Earlier this yr TCPAWorld reported on the US Courtroom of Appeals for the Third Circuit (Third Circuit) choice in Fischbein v. Olson Analysis Group (https://tcpaworld.com/2020/05/18/survey-faxes-offering-honorarium-contain-advertisement-for-tcpa-purposes/).

Therein, Mr. Fischbein obtained a fax providing an honorarium to take part in a survey. So he introduced a Phone Shopper Safety Act (TCPA) lawsuit claiming he had obtained an unsolicited commercial in violation of the TCPA. A panel of that court docket dominated (and rehearing was denied):

“[A] recipient of a fax providing to purchase items or companies from the recipient would take into account the fax to be an commercial. In any case, a fax making an attempt to purchase items or companies isn’t any much less business than a fax making an attempt to promote items or companies to the recipient and a fax that is a component of a market analysis survey is simply as business as a fax making an attempt to promote or purchase items or companies to or from the recipient. Due to this fact, it’s apparent {that a} fax looking for a response to a survey is looking for a service.”

“A suggestion of cost in alternate for participation in a market survey is a business transaction, so a fax highlighting the provision of that transaction is an commercial beneath the TCPA.”

In Podiatry In Movement, Inc. v. Interviewing Providers of America, LLC et al., 2020 U.S. Dist. LEXIS 185087, Case No. 20 C 3159, October 5, 2020, the plaintiff obtained an analogous fax and sought to parlay the Third Circuit choice to success in his TCPA lawsuit. On this occasion, the fax supplied a “$15 Amazon present card” as “a token of our appreciation” for collaborating in “a quick survey” (5-10 minutes). Dr. Heiring, the focused podiatrist, was required to offer “some primary info to obtain [his] incentive,” however had no obligation to take part.

Choose Ronald A. Guzman centered on the simple query as as to whether the “fax, on its face, constitutes an commercial.” In doing so, he was extra persuaded by the dissent in Fischbein, which argued that the “majority substituted is personal which means of the time period ‘commercial’ for that supplied by the statute.”

Choose Guzman was equally unwilling to interact in such a substitution.

Wanting on the language of the statute, “because the Courtroom should,” he agreed that “the moment fax shouldn’t be making one thing commercially obtainable; slightly it’s asking for the recipient to finish a survey.” The munificent supply of a $15 Amazon present card didn’t make it in any other case. Movement to dismiss for failure to state a declare granted.