Third Circuit Holds Solicitations to Purchase Products and for Participation in Surveys can be Advertisements Under the TCPA

On May 15, 2020, the Third Circuit in Fishbein v. Olson Research Group, Inc. held “that solicitations to buy products, goods, or services can be advertisements under the TCPA and that solicitations for participation in . . . surveys in exchange for [money] by the sender were for services within the TCPA” making such solicitations advertisements that fall within the TCPA’s ambit. This opinion comes just one year after the Third Circuit issued its precedential decision in Mauthe v. Optum, Inc., holding that, in order for a fax to be considered an advertisement under the TCPA, “there must be a nexus between the fax and the purchasing decision of an ultimate purchaser whether the recipient of the fax or a third party,” meaning that “the fax must promote goods or services to be bought or sold, and it should have profit as an aim.”

The consolidated appeal in Fishbein arose from two District Court decisions, Fishbein v. Olson Research Group, Inc., which involved a fax offering the recipient money in exchange for participating in a medical study, and Mauthe v. ITC, Inc., which involved faxes that offered the recipient money in exchange for completing surveys. After applying the Third Circuit’s precedential opinion in Optum, the District Courts dismissed the plaintiffs’ cases under Federal Rule of Civil Procedure 12(b)(6), concluding “that such surveys are not advertisements within the meaning of the TCPA because they did not attempt to sell anything to their recipients.”

In reversing, the Third Circuit recognized that the TCPA makes it “unlawful for any person . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement,” and that the TCPA defines an “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.” Ultimately, the Third Circuit in Fishbein reasoned 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.” That is, “a recipient of a fax offering to buy goods or services from the recipient would consider the fax to be an advertisement” because “a fax attempting to buy goods or services is no less commercial than a fax attempting to sell goods or service.” As such, the Court determined that “it is obvious that a fax seeking a response to a survey is seeking a service.”

The dissent in Fishbein found that the majority made two “fundamental errors” in its opinion. First, the dissent reasoned that the majority read words into the TCPA that do not exist because “the TCPA ‘does not prohibit all unsolicited faxes, just advertisements,’” and since the faxes at issue did “not advertise the ‘commercial availability or quality’ of anything,” but rather sought “to obtain something,” the faxes were not “unsolicited advertisements” and fell outside the scope of the TCPA. Second, the dissent found that the majority’s opinion misread the Third Circuit’s own precedent in Optum because the faxes at issue lacked the required “nexus” between the faxes and the purchasing decision of the recipient.

In sum, the majority’s holding in Fishbein significantly broadens the definition of what constitutes an advertisement under the TCPA, which could be potentially problematic for defendants in TCPA cases.

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