Divided Third Circuit Panel Holds that Offers to Buy Can Qualify as “Advertisements” Under the TCPA

A divided panel of the Third Circuit Court of Appeals recently reversed the dismissal of TCPA claims, finding that the faxes at issue were advertisements within the meaning of the TCPA. Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). The Court made this finding even though the faxes at issue did not attempt to sell anything, but rather contained offers to buy the recipients’ services.

In Fischbein, the Third Circuit heard two consolidated appeals in which plaintiffs alleged that the defendants had violated the TCPA by sending them faxes that offered money in exchange for responses to market research surveys. Id. at 561. In both cases, the trial court dismissed the claims because the faxes were not an attempt to sell anything, and thus were not “advertisements” such that the sender needed a recipient’s prior express consent. A divided panel of the Third Circuit disagreed because, in its view, an offer to buy products, goods, or services can also qualify as an advertisement under the TCPA. Id. at 561.

The majority initially observed that the TCPA defines an “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services. . . .” Id. at 562 (citing 47 U.S.C. § 227(a)(5)). It also noted a prior decision in which the Third Circuit found that “to be an ad, the fax must promote goods or services to be bought or sold, and it should have profit as an aim.” Id. (emphasis added) (citing Mauthe v. Optum Inc., 925 F.3d 129, 133 (3d Cir. 2019)). But the Optum opinion did not consider whether a fax offering to buy something could trigger the TCPA. Rather, it involved a fax that encouraged recipients to influence a third party’s purchasing decisions. Id. at 133-34.  The Fischbein majority nevertheless noted 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.” Id. (emphasis added).

The majority went on to note that it “do[es] 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.” Fischbein, 959 F.2d at 562. Accordingly, the majority found that any fax that announces “the availability of an opportunity for the recipient to exchange goods or services for compensation” falls within the reach of the TCPA. Id. (emphasis added). Because an offer of payment in exchange for responses to a market survey is a “commercial transaction,” the majority concluded that these faxes had triggered the statute. Id. at 564.

The majority’s expansive interpretation is an outlier that prompted a withering dissent from Circuit Judge Kent A. Jordan, who observed that the majority was wrong to base its interpretation of the statute on “the subjective perception of litigants.” He then explained that the majority had rewritten the statute by replacing the “commercial availability” definition with a “commercial transaction” test. As for whether these faxes had advertised the “commercial availability” of anything such that they triggered the statute, Judge Jordan explained that they had not. To the contrary, they sought “to obtain something – the doctor’s survey responses.” In other words, they communicated “the exact opposite of availability,” specifically “a need for something not readily available to the sender.” Id. (emphasis added).

One of the Defendants has petitioned for a rehearing en banc, which would allow the entire Third Circuit to review the interpretive errors outlined in Judge Jordan’s dissent.  We will continue to monitor this case and report on any significant developments.