Second Circuit Decision on Faxes under TCPA

Second Circuit Decision on Faxes under TCPA

TCPAWorld has seen this question before. Does an Unsolicited Invitation Sent by Fax to Participate in Market Research in Exchange for Money Constitute “Unsolicited Advertising” under the Consumer Telephone Protection Act 1991 (the “TCPA”) ?

Last year, a 2-1 United States Court of Appeals decision for the Third Circuit, in Fischbein Research Group v. Olson, stated that such a fax constituted such publicity.

Now comes the second neighboring circuit to Bruce Katz, MD, PC, d / b / a Juva Skin and Laser Center v. Focus Forward, LLC, 2022 US App. LEXIS 383, Case No. 21-1224-cv, United States Court of Appeals for the Second Circuit, January 6, 2022, and answers the question with a resounding “no”.

Focus Forward sent the Katz Professional Corporation two faxes, one addressed to “nurse practitioners” and the other to “nurses and medical assistants”. Each explained that Focus “was currently carrying out a market study” and “offered[ed] a fee of $ 150 for [the recipient’s] participation in a. . . telephone interview. Katz filed a TCPA class action suit alleging violations of the TCPA because the faxes contained “unsolicited advertising.” Focus argued that they had not done so and the district court agreed, dismissing the case. Katz appealed, urging the Second Circuit to follow the logic of its Third brethren.

But his plea fell on deaf ears with Judges Cabranes, Lohier and Lee. To start “[i]n interpret the TCPA, ‘[w]e start with the language of the law. If the statutory language is unambiguous, we interpret the statute according to the ordinary meaning of its words. ‘ By law, “unsolicited advertisements” are only documents “announcing the commercial availability or quality of any good, good or service”. Faxes that solicit a recipient’s participation in a survey clearly do not advertise the availability of any of these three things and therefore cannot be “advertisements” under the TCPA. “

The panel rejects the idea – although it was not raised by either party – that money could constitute “property” for TCPA purposes, noting, among other reasons, “[i]It would be strange if the law spoke of “buying or renting or investing in” money. “

As to the argument that Katz faxes could advertise the availability of a “service” (i.e. the recipient’s participation in the investigation), the Court observed that “distorts too far the ordinary meaning of the law “. The recipient may or may not participate in the survey and the sender does not know what will happen in this regard. Thus, “faxes… cannot reasonably be interpreted as advertising the availability of such a service”.

The Court rejects the logic of the confidence of the majority of the Third Circuit on “an encyclopedic definition of what constitutes a” commercial transaction “to argue that” an offer to pay. . . transform it. . . advertising market research ‘, rather than focusing on the definition of’ advertising ‘provided by the TCPA and FCC regulations.

The panel finds that in doing so, the “opinion” has effectively rewritten[es]” the law prohibiting communications which advertise ” the availability of an opportunity . . . to exchange goods or services. But the law does not prohibit communications announcing the availability of such an “opportunity”. Nor does it prohibit communications announcing the availability of transactions of a “commercial nature”, because the Fischbein suggests the majority. It specifically prohibits communications announcing “availability.” . . anyway goods, goods or services. ” As the Fischbein dissident explained, the faxes requesting the participation in the investigation of a recipient “communicat[e] the exact opposite of availability -… indicating a need for something that is not readily available to the sender.

Finally, the Court your bridge dispenses with the prospect of the proposed polls being a “pretext” for further publicity, even though the argument was not raised by either party.

So in this case, no ground for complaint under the TCPA.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 10

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