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  • 2nd Circuit addresses TCPA’s definition of “unsolicited advertisement”


    On January 6, the U.S. Court of Appeals for the Second Circuit held that an unsolicited fax asking recipients to participate in a market research survey in exchange for money does not constitute as an “unsolicited advertisement” under the TCPA. According to the opinion, the plaintiff medical services company claimed the defendant sent two unsolicited faxes seeking participants for its market research surveys in exchange for an “honorarium of $150,” and filed a putative class action alleging violations of the TCPA, as amended by the Junk Fax Prevention Act of 2005 (JFPA). The district court agreed with the defendant that an unsolicited faxed invitation to participate in a market research survey is not an “unsolicited advertisement” under the TCPA and dismissed the case.

    The TCPA, as amended by the JFPA, 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.” On appeal, the 2nd Circuit found that the defendant’s faxes asking participants to take part in a market survey “plainly do not advertise the availability of any of those three things, and therefore cannot be ‘advertisements’ under the TCPA.” The 2nd Circuit added that “[t]his is not to say that any communication that offers to pay the recipient money is thereby not an advertisement. One could imagine many examples of communications, including faxed surveys, offering the recipient both money and services, that might incur liability under the TCPA.” The 2nd Circuit recognized that its decision disagrees with the 3rd Circuit’s ruling in Fischbein v. Olson Research Group, which held that faxes such as the ones at issue are advertisements because “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.” The 2nd Circuit held that in Fischbein the 3rd Circuit mistakenly relied “on an encyclopedia definition of what constitutes a ‘commercial transaction’. . . rather than focusing on the definition of ‘advertisement’ that the TCPA and FCC regulations provide.”

    Courts TCPA Privacy/Cyber Risk & Data Security Second Circuit Third Circuit Appellate Faxes

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