Earlier this year TCPAWorld reported on the United States Court of Appeals for the Third Circuit (Third Circuit) decision in Fischbein v. Olson Research Group (https://tcpaworld.com/2020/05/18/survey-faxes-offering-honorarium-contain-advertisement-for-tcpa-purposes/).

Therein, Mr. Fischbein received a fax offering an honorarium to participate in a survey. So he brought a Telephone Consumer Protection Act (TCPA) lawsuit claiming he had received an unsolicited advertisement in violation of the TCPA. A panel of that court ruled (and rehearing was denied):

“[A] recipient of a fax offering to buy goods or services from the recipient would consider the fax to be an advertisement. After all, a fax attempting to buy goods or services is no less commercial than a fax attempting to sell goods or services to the recipient and a fax that is an element of a market research survey is just as commercial as a fax attempting to sell or buy goods or services to or from the recipient. Therefore, it is obvious that a fax seeking a response to a survey is seeking a service.”

“An offer of payment in exchange for participation in a market survey is a commercial transaction, so a fax highlighting the availability of that transaction is an advertisement under the TCPA.”

In Podiatry In Motion, Inc. v. Interviewing Services of America, LLC et al., 2020 U.S. Dist. LEXIS 185087, Case No. 20 C 3159, October 5, 2020, the plaintiff received a similar fax and sought to parlay the Third Circuit decision to success in his TCPA lawsuit. In this instance, the fax offered a “$15 Amazon gift card” as “a token of our appreciation” for participating in “a brief survey” (5-10 minutes). Dr. Heiring, the targeted podiatrist, was required to provide “some basic information to receive [his] incentive,” but had no obligation to participate.

Judge Ronald A. Guzman focused on the straightforward question as to whether the “fax, on its face, constitutes an advertisement.” In doing so, he was more persuaded by the dissent in Fischbein, which argued that the “majority substituted is own meaning of the term ‘advertisement’ for that provided by the statute.”

Judge Guzman was similarly unwilling to engage in such a substitution.

Looking at the language of the statute, “as the Court must,” he agreed that “the instant fax is not making something commercially available; rather it is asking for the recipient to complete a survey.”  The munificent offer of a $15 Amazon gift card did not make it otherwise. Motion to dismiss for failure to state a claim granted.