959 F.3d 559
3rd Cir.2020Background:
- Two consolidated appeals from physicians (Mauthe and Fischbein) who received unsolicited faxed market-research survey invitations offering payments ($200, $150, and smaller amounts) for participation.
- District Courts dismissed both complaints under Rule 12(b)(6), relying on this Court’s prior decision in Mauthe v. Optum, Inc., concluding market-survey faxes are not TCPA "unsolicited advertisements."
- Defendants characterized the offered payments as "honorariums" or "gifts" and argued the faxes did not advertise goods or services for sale.
- The Third Circuit Majority reversed: held that a fax offering payment for survey participation is an offer to buy services and thus can advertise the "commercial availability" of services under 47 U.S.C. § 227(a)(5).
- The Majority distinguished unpaid surveys and emphasized the commercial character of offering compensation to induce responses, remanding for further proceedings.
- Judge Jordan dissented, arguing the TCPA’s definition focuses on advertising availability of goods/services (i.e., sellers advertising to buyers), that Optum forecloses treating purchase-offers as advertisements, and that the Majority rewrote the statute.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether faxes offering payment for survey participation are "unsolicited advertisements" under the TCPA | Such paid-survey faxes advertise the availability of services (responses) for hire and thus are advertisements | The faxes sought to buy services (responses), not advertise availability of goods/services for sale, so they fall outside the TCPA definition | Yes; offering payment to induce survey participation can be an advertisement under § 227(a)(5) |
| Whether an offer to buy services (paying recipients) qualifies as advertising the "commercial availability" of property, goods, or services | Payment-offers convert a survey solicitation into a commercial transaction advertising availability of services | The statute targets promotion of sellers and availability for sale, not solicitations to purchase; focusing on availability is dispositive | Majority: an offer to exchange compensation for services is commercial and fits the statute; Dissent: statutory text does not support this expansion |
| Whether Mauthe v. Optum, Inc. precludes treating survey faxes as advertisements | Optum does not limit advertisements to seller-facing solicitations; a nexus to purchasing decisions is required but can arise where sender offers to buy services | Optum shows surveys that seek information to improve a product (without linking to a sale) are not ads; here there is no nexus to buyers’ purchasing decisions | Majority: Optum does not bar treating paid-survey faxes as ads; the offer-to-buy context satisfies commercial character. Dissent: Optum forecloses this result because no nexus to purchaser decisions was shown |
| Whether the term "property" in the TCPA includes money (supporting plaintiffs' statutory theory) | Plaintiffs argued money is "property," so a fax advertising availability of money would be an advertisement | Defendants opposed that strained reading of the statute | Court rejected that money-as-property theory as unnecessary and strained; held payment-offer need not be framed as money-as-property to find an advertisement |
Key Cases Cited
- Mauthe v. Optum, Inc., 925 F.3d 129 (3d Cir. 2019) (framework for when a fax is an "unsolicited advertisement" and requirement of nexus to purchasing decisions)
- United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (discussion of commercial transactions and voluntary economic exchange)
- Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) (courts’ obligation to apply the law Congress enacted)