Can an unsolicited facsimile offering an “honorarium” to participate in a survey constitute the transmission of an “unsolicited advertisement” for purposes of the Telephone Consumer Protection Act (TCPA)? After all, such a fax does not include “any material advertising the commercial availability or quality of any property, goods, or services” that the sender is peddling to the recipient.

That was the fundamental question in Dr. Richard E. Fischbein et al. v. Olson Research Group, Inc. et al., 2020 U.S. App. LEXIS 15592, No. 19-3018, No. 19-3022, United States Court of Appeals for the Third Circuit, May 15, 2020. Olson had sent Dr. Fischbein a fax offering him $150 in exchange for his participation in a study on the management of disorders in neurological patients. Also in the consolidated appeal was Dr. Richard Mauthe, whose litigation against survey faxes has been the subject of several TCPAWorld reports. Indeed, the District Courts applied the Circruit’s Mauthe v. Optum, Inc., 925 F.3d 129 (3d Cir. 2019) decision in dismissing both cases, concluding that “such surveys are not advertisements within the TCPA because they did not attempt to sell anything to their recipients.”

 Hold your horses said the Third Circuit, clarifying in its 2-1 decision that “nothing in Optum limits an advertisement to a fax that the sender intends will facilitate the sale of a service or product to the recipient.”

Turning the tables so to speak, the panel did not “doubt that 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.” (emphasis supplied).

But is money a form of “property, goods and services” under the TCPA? The Circuit found that was not the relevant question, holding “in considering whether the sender of a fax has an intent to buy ‘property, goods, or services’ available commercially, the term used in the TCPA, 47 U.S.C. § 227(a)(5), means the property, goods or services being bought or sold, not the money offered to buy them.”

The panel refused to construe the statute so narrowly: “Any fax announcing the availability of an opportunity for the recipient to exchange goods or services for compensation is ‘material advertising the commercial availability or quality of any property, goods, or services,’ within the TCPA. …We reiterate that a fax offering the opportunity to sell is just as commercial in character as a fax offering the recipient the opportunity to buy property, goods, or services.”

In summary, “it is an offer of payment to the recipients that transforms the solicitation of responses to market surveys into advertisements.” Thus, 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.”

So if you are sending such fax surveys in the Third Circuit, beware of the lagniappe incentive.