3rd Circuit Finds Faxed Research Surveys Offering Participation Payments are Advertisements Under TCPA

The Third Circuit recently held that the TCPA’s definition of advertisement includes faxes seeking participation in market research surveys in exchange for payments, overturning two lower court decisions.  The lower courts granted motions to dismiss in each case, holding that because the surveys did not sell anything to the recipients, they were not advertisements under the TCPA.

The TCPA prohibits sending unsolicited advertisements through fax regarding the commercial availability or quality of any property, goods, or services.  The Third Circuit previously held that the fax must “promote goods or services to be bought or sold” to be an advertisement under the TCPA.  An advertisement may include a fax offering to buy goods or services from the recipient or offering to sell goods or services to the recipient.

In the underlying cases, the defendants sent unsolicited faxes of market research surveys and offered payments of $150 and $200 in exchange for participation in each survey.  The defendants argued that the payments were not advertisements and should be viewed as gifts. 

The Third Circuit disagreed.  Instead, the Third Circuit explained that the faxes were advertisements because they promised payments in exchange for participation in each market research survey, and promoted the existence of the commercial transaction.  Further, the payments promised in the survey were offered to increase survey response rates, a commercial purpose, and not as a gift for participation.  Thus, the court rejected the defendants’ offer to view the advertisements as gifts.  The Third Circuit reversed the lower courts’ dismissal of these two cases and remanded the cases for further proceedings.