Second Circuit Diverges from Third, Holds that an Unsolicited Invitation to Participate in a Survey is Not Actionable Under the TCPA

The Second Circuit recently addressed whether a faxed invitation to participate in a market research survey is an “unsolicited advertisement” actionable under the TCPA.  In Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022), the Court of Appeals held that under the plain text of the TCPA, an offer to participate in a survey, without more, is not an advertisement because it does not communicate the “availability or quality of any property, goods, or services.”  Id. at 372.

The dispute arose from defendant Focus Forward LLC’s two faxes to plaintiff Bruce Katz, M.D., P.C., a medical services company.  Id. at 370.  The faxes offered $150 in exchange for participation in a market research study.  Id.  Plaintiff initiated a putative class action lawsuit in the Southern District of New York alleging violations of the TCPA, but the federal district court dismissed the complaint, agreeing with Defendant that an invitation to participate in a market research survey was not an unsolicited advertisement within the bounds of 47 U.S.C. § 227.  Id.

Affirming the district court, the Second Circuit initially observed that the plain language of the TCPA defines an unsolicited advertisement as “only those materials ‘advertising the commercial availability or quality of any property, goods, or services.’”  Id. at 372 (quoting 47 U.S.C. § 227(a)(5)).  Next, the court noted that the Third Circuit addressed this same issue in Fischbein v. Olson Research Group, 959 F.3d 559 (3d Cir. 2020) and a split panel of that court reached the opposite outcome, holding that a fax soliciting participation in a survey is an advertisement.  Id. at 371.  The Fischbein court reasoned that “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.”  Id. (quoting 959 F.3d at 564).  (For a more in-depth analysis of the Fischbein opinion, see our discussion of the case here.)

In Bruce Katz, M.D., P.C., however, the court expressly rejected the Fischbein analysis and held that the faxes at issue were outside the scope of the unambiguous language of the statute because “[f]axes that seek a recipient’s participation in a survey plainly do not advertise the availability of any [property, good, or service], and therefore cannot be ‘advertisements’ under the TCPA.”  Id. at 372.  According to the Second Circuit, the outcome in Fischbein “relies on an encyclopedia definition of what constitutes a ‘commercial transaction’ to argue that ‘an offer of payment transforms the . . . market surveys into advertisements,’ rather than focusing on the definition of ‘advertisement’ that the TCPA and FCC regulations provide.”  Id. at 373 (citing 959 F.3d at 564).

The Second Circuit’s decision in Bruce Katz, M.D., P.C. creates a direct circuit split, not yet addressed by the remaining Courts of Appeals or the United States Supreme Court.  We will provide further coverage regarding this circuit split when other courts address the issue of whether a faxed invitation to participate in a market research survey is an “unsolicited advertisement” actionable under the TCPA.