The Telephone Consumer Protection Act of 1991 (the "TCPA") prohibits the sending, by fax, of unsolicited advertisements.  In 2019, the Juva Skin and Laser Center received two unsolicited faxes from Focus Forward, a market research company that was soliciting people to participate in market research surveys.  Juva sued the Focus Forward in the United States District Court for the Southern District of New York, alleging that the sending of the faxes violated the TCPA.  The District Court dismissed the case, and the Second Circuit recently affirmed the decision.  Here's why. 

Focus Forward sent two faxes to Juva inviting medical professionals to participate in market research surveys.  The first fax invited nurse practitioners and physician assistants working in dermatology offices to participate in a survey related to the prescription of topical products.  The second survey sought participation by nurses and physician assistants, working in urology practices, in a survey related to treating patients with non-muscle invasive bladder cancer.  Both faxes offered a payment of $150 to participate in a phone interview. 

The key question in the case was whether a fax, inviting participation in a market research survey, qualifies as an "unsolicited advertisement" within the meaning of the TCPA.  Under the TCPA (and its implementing rules), an "unsolicited advertisement" is defined 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."  

In 2006, the Federal Communications Commission also promulgated a rule that specifically construes the TCPA as prohibiting surveys that are merely a pretext to an advertisement.  The FCC said, "any surveys that serve as a pretext to an advertisement are subject to the TCPA's facsimile advertising rules.  The TCPA's definition of 'unsolicited advertisement' applies to any communication that advertises the commercial availability or quality of property, goods or services, even if the message purports to be conducting a survey." 

Here, the Second Circuit held that faxed surveys, that are not a pretext for other advertising material, do not violate the TCPA.  Noting that the TCPA only prohibits the sending of materials that advertise the commercial availability or quality of any "property, goods, or services," the Court wrote, "Faxes that seek a recipient's participation in a survey plainly do not advertise the availability of any one of those three things, and therefore cannot be 'advertisements' under the TCPA." 

While this is certainly good news for market research companies, I wouldn't start firing up your fax machines just yet.  The Second Circuit's decision expressly parts ways with an earlier decision in the Third Circuit, which held that these types of surveys sent by fax do violate the TCPA.  So, until the Supreme Court weighs in, it's back to malls and clipboards.  

Bruce Katz, M.D. v. Focus Forward, No. 21-1224-cv (2d Cir. January 6, 2022).