Richard Fischbein v. Olson Research Group Inc

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-3018
______________
DR. RICHARD E. FISCHBEIN,
Appellant
v.
OLSON RESEARCH GROUP, INC.; JOHN DOES 1-12
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-17-cv-05601)
District Judge: Honorable Gerald J. Pappert
______________
No. 19-3222
______________
ROBERT W. MAUTHE M.D., P.C.,
Individually and as the representative of a class of similarly
situated persons,
Appellant
v.
ITG, INC.; ITG INVESTMENT RESEARCH, INC.;
M SCIENCE LLC
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 5-18-cv-01968)
District Judge: Honorable Chad F. Kenney
______________
Argued March 24, 2020
BEFORE: JORDAN, RESTREPO and GREENBERG,
Circuit Judges.
(Filed: May 15, 2020)
______________
Phillip A. Bock (Argued)
Robert M Hatch
David M. Oppenheim
Bock Hatch Lewis & Oppenheim
134 North La Salle Street
Chicago, IL 60602
Counsel for Appellant in No. 19-3018
Samantha L. Southall (Argued)
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102
Attorneys for Appellee in No. 19-3018
2
Phillip A. Bock (Argued)
Molly S. Gantman
David M. Oppenheim
Bock Hatch Lewis & Oppenheim
134 North La Salle Street, Suite 1000
Chicago, IL 60602
Daniel J. Cohen
P.O. Box 432040
Maplewood, MO 63143
Andrew J. Reilly
Swartz Campbell
115 North Jackson Street
Media, PA 19063
Richard E. Shenkan
Shenkan Injury Lawyers
P.O. Box 7255
New Castle, PA 16107
Attorneys for Appellant in No. 19-3222
Francis J. Earley (Argued)
Mintz Levin Cohn Ferris Glovsky & Popeo
The Chrysler Center
666 Third Avenue
New York, NY 10017
Esteban Morales
Mintz Levin Cohn Ferris
2029 Century Park East, Suite 3100
Los Angeles, CA 90067
3
James W. Kraus
Pietragallo Gordon Alfano Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219
Kevin E. Raphael
Pietragallo Gordon Alfano Bosick & Raspanti
1818 Market Street, Suite 3402
Philadelphia, PA 19103
Attorneys for Appellee ITG, INC. in No. 19-3222
Patrick D. Doran (Argued)
Thomas P. Manning
Craig D. Mills
Buchanan Ingersoll & Rooney
50 South 16th Street
Two Liberty Place, Suite 3200
Philadelphia, PA 19102
Attorneys for Appellees ITG Investment Research, Inc.
and M Science LLC in No. 19-3222
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
4
I. INTRODUCTION
In this pair of appeals, we are asked to decide whether
faxes soliciting participation by the recipients in market research
surveys in exchange for monetary payments are advertisements
within the meaning of the Telephone Consumer Protection Act,
47 U.S.C. § 227 (b)(1)(C) (“TCPA”), which prohibits the
transmission of unsolicited fax advertisements. Applying our
recent precedent in Mauthe v. Optum, Inc., 925 F.3d 129 (3d
Cir. 2019), the District Courts dismissed both cases under
Federal Rule of Civil Procedure 12(b)(6) as the Courts
concluded that such surveys are not advertisements within the
TCPA because they did not attempt to sell anything to their
recipients. We hold, however, that solicitations to buy products,
goods, or services can be advertisements under the TCPA and
the solicitations for participation in the surveys in exchange for
$200.00 by one sender and $150.00 by the other sender were for
services within the TCPA.1 Defendants characterize the
proposed payments as “honorariums” or “gifts”. Consequently,
we will reverse the District Courts’ dismissal of these cases by
orders dated August 26, 2019, in Fischbein v. Olson Research
Group, No. 19-3018, and August 29, 2019, in Mauthe v. ITC,
Inc., No. 19-3222, and will remand the cases to the District
Courts for further proceedings.2
1
In some circumstances lesser payments were involved.
2
In Mauthe v. National Imaging Assocs., we pointed out that
we were not addressing the question of whether a fax in which
the sender is seeking to buy something from the recipient comes
within the TCPA. 767 F. App’x 246, 249 n.1 (3d Cir. 2019).
5
II. JURISDICTION AND STANDARD OF REVIEW
The District Courts had jurisdiction under 28 U.S.C. §§
1331 and 1332 and we have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s dismissal under
Rule 12(b)(6) for failure to state a claim on which relief may be
granted. Geness v. Cox, 902 F.3d 344, 353 (3d Cir. 2018). In
determining whether a plaintiff sufficiently has stated a claim to
survive a motion to dismiss under Rule 12(b)(6), “we accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the plaintiff . . . . However, we disregard
threadbare recitals of the elements of a cause of action, legal
conclusions, and conclusory statements.” City of Cambridge
Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878-
79 (3d Cir. 2018) (internal quotations and citations omitted). “A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Zuber
v. Boscov’s, 871 F.3d 255, 258 (3d Cir. 2017) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)).
III. DISCUSSION
The TCPA makes it “unlawful for any person within the
United States, or any person outside the United States if the
recipient is within the United States . . . to use any telephone
facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement[.]”
47 U.S.C. § 227(b)(1)(C). It defines an “unsolicited
advertisement” as “any material advertising the commercial
availability or quality of any property, goods, or services which
6
is transmitted to any person without that person’s prior express
invitation or permission, in writing or otherwise.” Id. §
227(a)(5). As we held in Optum, “to be an ad, the fax must
promote goods or services to be bought or sold, and it should
have profit as an aim.” 925 F.3d at 133 (citation omitted). In
the context where an entity sends a fax attempting to make a
sale, we held that “there must be a nexus between the fax and
the purchasing decisions of an ultimate purchaser.” Id.
However, 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. We do 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. After all, a fax
attempting to buy goods or services is no less commercial than a
fax attempting to sell goods or services to the recipient and a fax
that is an element of a market research survey is just as
commercial as a fax attempting to sell or buy goods or services
to or from the recipient. Therefore, it is obvious that a fax
seeking a response to a survey is seeking a service.
The parties in their briefs address the question of whether
money is a form of property for the purposes of the TCPA. We
fail to see the relevance of that question. In considering whether
the sender of a fax has an intent to buy “property, goods, or
services” available commercially, the term used in the TCPA,
47 U.S.C. § 227(a)(5), means the property, goods or services
being bought or sold, not the money offered to buy them. The
defendants appear to construe unsolicited advertisement which
the TCPA defines as “any material advertising the commercial
availability or quality of any property, goods, or services”—as
requiring that the offer itself, in this case money, to be the
“property, goods, or services” commercially available. Id. We
7
do not construe the statute so narrowly. Any fax announcing the
availability of an opportunity for the recipient to exchange
goods or services for compensation is “material advertising the
commercial availability or quality of any property, goods, or
services,” within the TCPA. Id. We reiterate that a fax offering
the opportunity to sell is just as commercial in character as a fax
offering the recipient the opportunity to buy property, goods, or
services.
Defendants argue that Optum, though in dicta, suggested
that market research surveys are not advertisements within the
TCPA’s prohibition against unsolicited fax advertisements.
Optum, 925 F.3d at 134. But that observation was not a legal
conclusion. We merely highlighted that the FCC, at least at that
time, had not considered market surveys as telemarketing by
phone. Id. We also pointed out that the issue of whether paid
market surveys are fax advertisements as defined by the TCPA
was pending before the FCC. Id. at 134 n.3. More importantly,
there is no indication of whether or not the FCC would consider
paid market surveys as telemarketing.
It is an offer of payment to the recipients that transforms
the solicitation of responses to market surveys into
advertisements. “[A]ll commercial transactions have one thing
in common: they serve to transmit economic values such as
materials, products, and services from those who want to
exchange them for another value, usually money, to those who
need them and are willing to pay a countervalue.” Commercial
Transaction, Encyc. Britannica,
https://www.britannica.com/topic/commercial-transaction (last
visited Apr. 6, 2020); see United States v. Bishop, 66 F.3d 569,
602 (3d Cir. 1995) (Becker, J., concurring in part and dissenting
in part) (“[T]he preferable definition of commercial transaction
8
requires an activity involving a voluntary economic exchange.”
(emphasis added)).
In our analysis it is useful to consider the case of a blood
donor. Ordinarily, a person giving blood is thought to have
performed a benevolent act. However, a donor may give blood
at a blood bank in exchange for money. There can be no
question that if a blood bank sends a fax highlighting its
willingness to purchase blood for money, that fax would be an
advertisement. As we stated above, any fax announcing the
availability of opportunities to exchange goods or services for
compensation is an advertisement within the meaning of the
TCPA. Even though the act of donating blood is certainly not a
commercial act it would not be a non-commercial act if the
sender of the fax took steps to induce or influence the recipient
by converting the donation into a commercial transaction by
paying for the blood.3
At oral argument before us, the appellees brought to our
attention two recent district court opinions, one from the Eastern
District of Michigan and the other from the Southern District of
New York, both holding that fax market surveys, paid or
unpaid, are not advertisements for the purposes of the TCPA.
Exclusively Cats Veterinary Hosp., P.C. v. M/A/R/C Research,
L.L.C., No. 19-11228, 2020 U.S. Dist. LEXIS 45181 (E.D.
Mich. Mar. 16, 2020); Machonis v. Universal Survey Ctr., Inc.,
No. 18-10978, 2020 U.S. Dist. LEXIS 31330 (S.D.N.Y. Feb. 21,
3
We realize our holding necessarily raises the question of
whether a fax soliciting charitable donations would be
considered an advertisement under the TCPA and therefore
would be prohibited. We need not answer that question as it is
not before us.
9
2020) (magistrate judge’s report and recommendation). Neither
opinion persuades us to reach a different conclusion. First, both
opinions rely heavily on the same FCC interpretation of market
surveys in the telemarketing by phone context we discussed
above, which are significantly different than faxes, a material
difference Congress itself recognized. H.R. Rep. No. 102-317,
at *10 (1991) (“This type of telemarketing [by fax] is
problematic for two reasons. First, it shifts some of the costs of
advertising from the sender to the recipient. Second, it occupies
the recipient’s facsimile machine so that it is unavailable for
legitimate business messages while processing and printing the
junk fax.”). We note yet another difference between the two—
whereas consumers can easily and quickly end telemarketing
phone calls by hanging up, rarely do fax recipients end a fax
“call” prematurely. Moreover, as we noted above, the FCC has
never opined on whether paid market surveys, even in the
telemarketing by phone context, would be considered
telemarketing.
Both opinions also highlight the concern that construing
fax market surveys as advertisements would somehow hinder
the important purposes market researchers serve, and
significantly limit their ability to collect valuable information
from consumers. This concern is contrary to the practical
realities of the internet age. In fact, fax market surveys might be
just about one of the least efficient forms of market surveys
today. Beyond the aforementioned method of surveys by
phone, now market research firms can solicit surveys via
electronic mail, the world-wide web, and various other digital
methods of which we, as legal jurists who admittedly are not the
most technology-savvy individuals, may not even be aware. Of
course, this observation begs the question as to why these
market research firms would continually use this method to
10
solicit survey takers among healthcare professionals.
Plaintiffs provide us with that very answer in their briefs.
Although faxes have become almost a relic of the past for most
consumers, due to patient privacy laws, healthcare professionals
still rely on faxes for certain communications. This, of course,
renders them a very captive and easily identifiable audience, as
one of the few subgroups in the population that still commonly
employ the use of a fax machine. If market researchers have a
method to easily identify their target audience, and effectively
reach that audience in a way that is hard for the audience to
ignore, one can be sure they will exploit it. That makes
healthcare professionals especially vulnerable to unsolicited
faxes. While the TCPA may not protect them from all
unsolicited faxes, see infra, it can do so when the market
researcher converts the interaction into a commercial
transaction. As the Exclusively Cats court itself recognized,
these firms are not offering compensation out of the goodness of
their hearts—they do so for a commercial purpose, to increase
the response rate of their surveys, i.e. they can buy more of what
they desire. 2020 U.S. Dist. LEXIS 4181, at *5-22. Their
method fits every element of liability we espoused in Optum,
just in an intent to buy context. See 925 F.3d at 133.
As we alluded to above, our opinion must be cabined.
We realize that a recipient may regard a fax soliciting
participation in an unpaid market survey to be no less intrusive
or annoying than a fax that offers to pay the recipient for
participating in the survey. But as we recognized in Optum,
“we are constrained in reaching our decision by what the TCPA
actually prohibits—it does not prohibit all unsolicited faxes, just
advertisements.” Id. at 135. And the TCPA, as noted above,
defines advertisement as including property, goods, or services
11
that are “commercially available.” 47 U.S. § 227(a)(5). 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.4
In view of our analysis, we will reverse the District
Courts’ dismissals of these cases by orders dated August 26,
2019, and August 29, 2019, and remand the cases to the District
Courts for further proceedings. We express no opinion as to the
viability of the plaintiffs’ class action claims.
4
We are aware that at least one district court has construed a
paid market survey as an advertisement under the TCPA.
Lyngaas v. J. Reckner Assocs., No. 2:17-12867, 2019 WL
166227, at *2 (E.D. Mich. Jan. 10, 2019). Although its ruling is
not authoritative, we find its rationale persuasive. See id. No.
29 at 9 (“The fax in this case calls to the attention of the public
the fact that the service of survey-takers is desired by the
Defendant. The fax communicates that Defendant is seeking to
employ survey-takers.”). We also note that another district
court denied a motion to dismiss on this very issue,
Comprehensive Health Care Sys. of the Palm Beaches, Inc. v.
M3 USA Corp., 232 F. Supp. 3d 1239, 1242-43 (S.D. Fla.
2017), albeit under a different rationale which we do not
endorse here. Optum, 925 F.3d at 135 (“[W]e have not
endorsed and do not now do so the pretext theory of liability
under the TCPA[.]”). On the other hand, there is contrary
district court authority. See Exclusively and Machonis, both
discussed above.
12
JORDAN, Circuit Judge, dissenting.
In these consolidated appeals, my colleagues in the
Majority conclude that sending a fax that offers a small
honorarium in exchange for the completion of a research
survey violates the TCPA. In their view, such a fax counts as
“material advertising the commercial availability or quality of
any property, goods, or services[.]” 47 U.S.C. § 227(a)(5).
They reach that conclusion by reading into the statute words
that are not there, effectively rewriting it to prohibit
communications about “the availability of an opportunity… to
exchange goods or services[.]” (Majority Op. at 8.) They then
reason that the faxes at issue here violate the newly rewritten
statute because the faxes offer to buy services in the form of
responses to the surveys. As my colleagues’ reading of the
TCPA is supported by neither the text of the statute nor our
Court’s precedent, I respectfully dissent.
I. BACKGROUND
Dr. Mauthe operates a medical practice in Pennsylvania.
He is a frequent litigant; one might say he has a sub-specialty
in suing people under the TCPA. See Robert W. Mauthe M.D.,
P.C. v. Spreemo, Inc., No. 19-1470, 2020 WL 1492987 (3d Cir.
Mar. 25, 2020); Robert W. Mauthe, M.D., P.C. v. Optum Inc.,
925 F.3d 129 (3d Cir. 2019); Mauthe M.D., P.C. v. Nat’l
Imaging Assocs., Inc., 767 F. App’x 246 (3d Cir. 2019).
Between August of 2014 and March of 2015, he received five
faxes from ITG Market Research (“ITG”). Three of them
offered $200 in exchange for an hour of Mauthe’s time
participating in a telephone survey about catheter usage in
spinal cord injury patients. The other two faxes offered him
$60 for taking a 25-minute internet survey on neurological
1
movement disorders. Both sets of faxes stated that “[t]his
message is not a solicitation or advertisement for purchase/sale
of any products and/or services from ITG Market Research.”
(ITG App. 32-37). ITG is a company that provides data to
various healthcare providers to aid in their decision-making
processes.
Dr. Fischbein is a psychiatrist with a private practice in
Pennsylvania. In May of 2017, he received a fax from
defendant Olson Research offering him $150 in exchange for
his participation in a study on the management of disorders in
neurological patients. Olson Research is a marketing research
firm, with healthcare as one of its specialties.
II. DISCUSSION
Neither the faxes to Mauthe nor the one to Fischbein
should qualify as “unsolicited advertisements” under the
TCPA. In saying that they do, the Majority makes two
fundamental errors. First, it reads the text of the statute to
include words that are not there, a misstep that makes all the
difference. Second, it misreads our own precedent.
A. The Statute
“Under the TCPA, it is unlawful to send an unsolicited
advertisement by fax.” Optum, 925 F.3d at 132. The word
“advertisement” is crucial – the TCPA “does not prohibit all
unsolicited faxes, just advertisements.” Id. at 135. And
because that statutory term is so important, the TCPA provides
its own definition of “unsolicited advertisement,” defining it
to mean “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
2
invitation or permission, in writing or otherwise.” 42 U.S.C.
§ 227(a)(5).
Armed with that statutory text, we have everything we
need to decide this case. The text should lead us to conclude
that the faxes presently at issue are not “unsolicited
advertisements,” since they do not advertise the “commercial
availability or quality” of anything. Instead, they seek to
obtain something – the doctors’ survey responses. That means
they are outside the scope of the TCPA. Availability, after all,
means “the quality or state of being available[.]” See Merriam-
Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/availability, accessed 14 Apr. 2020.
And “available,” in turn, means “present or ready for
immediate use[.]” See id., https://www.merriam-
webster.com/dictionary/available, accessed 14 Apr. 2020.
Faxes offering compensation in exchange for the completion
of surveys are not advertising anything that is “present or ready
for immediate use.” The very fact that a fax seeks to obtain
something means that it is communicating the exact opposite
of availability – it is stating a need for something not readily
available to the sender.
That conclusion is bolstered by the federal regulations
associated with the TCPA. Those regulations state that the
word “sender… means the person or entity on whose behalf a
facsimile unsolicited advertisement is sent or whose goods or
services are advertised or promoted in the unsolicited
advertisement.” 47 C.F.R. § 64.1200(f)(10) (emphasis added).
As in the statute, the focus of the regulations is on the sale of
goods or services, not on their purchase.
3
My colleagues, however, eschew a straightforward
reading of the statute and substitute their own definition of
“unsolicited advertisement” for the one written by Congress.
They justify that substitution by saying they “do 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.”
(Majority Op. at 7.) That may be true, but what fax recipients
think about the faxes they get is not legally relevant. The
meaning of a statutory term does not depend on the subjective
perception of litigants. That is especially so when, as here, the
statute provides its own precise definition for the term in
question.
The Majority goes on to note that “a fax attempting to
buy goods or services is no less commercial than a fax
attempting to sell goods or services to the recipient[.]”
(Majority Op. at 7.) Again, that may be true. But again, it is
irrelevant. “[T]he TCPA only prohibits
unsolicited advertisements, not any and all faxes even if sent
for a commercial purpose.” Optum, 925 F.3d at 133 (emphasis
in original). And, under the TCPA, a fax is only an
advertisement if it advertises “the commercial availability or
quality of any property, goods, or services[.]” 47 U.S.C.
§ 227(a)(5) (emphasis added). The commercial nature of a fax
is only material to the extent it is connected to the availability
of “property, goods, or services.”1 So an offer to buy goods
may well be just as commercial in nature as an offer to sell
1
In their briefing, the plaintiffs argued at length that the
term “property” in the TCPA includes money, and thus that the
faxes advertised the commercial availability of money. That
reading strains the text to the breaking point, and the Majority
correctly rejects it.
4
them, but the former does not advertise the commercial
availability of a product, while the latter does. And that is the
key inquiry under the TCPA.
In the end, the Majority edits the statute to proscribe
advertising “the availability of an opportunity… to exchange
goods or services[.]” (Majority Op. at 8.) I agree that, if the
statute actually said that, it would prohibit the faxes at issue
here. Perhaps the Majority’s version is better than the law
passed by Congress, but, since our job is to apply the laws
Congress passes, I would affirm the judgments of the District
Courts.
B. Our Precedent
I would affirm the rulings on appeal for an additional
reason as well. Our own precedent, properly read, forecloses
the result the Majority reaches. In Robert W. Mauthe, M.D.,
P.C. v. Optum Inc., we confronted a similar situation and
concluded that the faxes in question were not unsolicited
advertisements. Optum, 925 F.3d at 134. A faithful
application of that precedent to the facts at hand should lead us
to affirm in these cases.
In Optum, just as here, the defendants were in the
business of maintaining healthcare related databases. Id. at
131. The Optum defendants “market[ed], [sold], and license[d]
the database typically to health care, insurance and
pharmaceutical companies, who use[d] it to update their
provider directories, identify potential providers to fill gaps in
their network of providers, and validate information when
processing insurance claims.” Id. at 131-32. They ensured the
accuracy of the database by sending faxes to healthcare
5
providers, “requesting them to respond and correct any
outdated or inaccurate information.” Id. at 132.
The plaintiffs in that case argued that the faxes were
unsolicited advertisements and thus prohibited by the TCPA,
but we held that “there is no basis on which defendants can be
held to have violated the TCPA … if the meaning of the
advertisement is viewed in a conventional way.” Id. We
concluded that just because the faxes sought to improve the
quality of the sender’s product did not mean that they were
unsolicited advertisements as defined by the TCPA. And we
established a test for determining when a fax crosses the line
into forbidden advertising. For a plaintiff to successfully make
the case that a fax is an unsolicited advertisement, he must
“show that the sender is trying to make a sale” by
demonstrating “a nexus between the fax and the purchasing
decisions of an ultimate purchaser whether the recipient of the
fax or a third party.” Id. at 133. Applying that test to the facts
then at hand, we held that the claims did not survive under
“any… theory of liability under the TCPA.” Id. at 134. That
was because “the faxes did not attempt to influence the
purchasing decisions of any potential buyer[.]” Id. at 135.
A simple application of Optum should lead to
affirmance here.2 The defendants before us also maintain
2
It is true that Optum, in dicta, stated that “to be an ad,
the fax must promote goods or services to be bought or sold[.]”
Optum, 925 F.3d at 133. That statement is unnecessary to the
holding because the faxes at issue did not seek to buy anything.
In any event, we did not consistently use that language
throughout. Later on, for example, we stated that “the fax must
convey the impression ... that a seller is trying to make a
sale[,]” and that “[t]he requirement for establishing TCPA
6
healthcare databases, and they earn their profits by selling
access to those databases to third parties not implicated in these
disputes. The only difference is that, in this case, the faxes
offered small sums of money in exchange for completion of the
surveys. But that should make no difference under Optum.
Our analysis there turned on the lack of a nexus between the
faxes and the purchasing decision of potential buyers. We
nowhere mentioned a lack of monetary compensation as a
significant factor in our conclusion that there was no nexus.
And the faxes here equally lack that nexus. They did not seek
to influence Mauthe or Fischbein in any purchasing decision.
Nor did they seek to cause Mauthe or Fischbein to influence
the purchasing decisions of others. The faxes were thus not
“unsolicited advertisements,” as that term is defined in the
TCPA and was interpreted in Optum.
The Majority sidesteps that conclusion by saying that
“an offer of payment to the recipients … transforms the
solicitation of responses to market surveys into
advertisements.” (Majority Op. at 8.) It tries to bolster that
point by citing the dictionary definition of “commercial
transaction” to demonstrate that the offer of payment brings the
proposed transaction into the realm of the commercial. But, as
noted earlier, that reasoning lacks relevance. The TCPA does
not speak to “commercial transactions.” Indeed, the word
“transaction” is not found anywhere in the statute. Instead, the
TCPA prohibits one specific thing – the sending of “unsolicited
advertisements.” And, again as discussed above, that term is
defined in the statute in a way disconnected from the
liability that we set forth is that there be a nexus between the
sending of the fax and the sender’s product or services and the
buyer’s decision to purchase the product or services[.]” Id. at
133-134 (first alteration in original).
7
Majority’s atextual approach. To repeat: the proper inquiry
under the TCPA is whether a fax advertises “the commercial
availability or quality of any property, goods, or services[,]”
47 U.S.C. § 227(a)(5), not whether it involves a “commercial
transaction.”3
The Majority’s analogy to blood donations proves the
point. It is true that a blood bank offering cash in exchange for
donations renders the transaction less eleemosynary than
3
In reaching its conclusion, the Majority rejects the
sound reasoning recently provided in Exclusively Cats
Veterinary Hospital, P.C. v. M/A/R/C Research, L.L.C., No.
19-11228, 2020 WL 1249232 (E.D. Mich. Mar. 16, 2020). The
Majority does so because it says the firms involved in the cases
before us and the research firm in Exclusively Cats “are not
offering compensation out of the goodness of their hearts—
they do so for a commercial purpose” and thus “[t]heir method
fits every element of liability we espoused in Optum[.]”
(Majority Op. at 11.) That is a puzzling assertion, since we
explicitly stated in Optum that the TCPA does not prohibit
“any and all faxes even if sent for a commercial purpose.”
Optum, 925 F.3d at 133. We were actually at pains to
emphasize that, to constitute a violation of the TCPA, “[i]t is
not enough that the sender sent a fax with a profit motive[.]”
Id. Similarly, it is odd that the Majority rejects the analogy to
FCC guidance that telemarketing surveys do not violate the
TCPA, given our reliance on that reasoning to reach our
conclusion in Optum. Id. at 134.
The Exclusively Cats court had it right. “Surveys, such
as the one Defendant proffered to veterinarians employed at
Plaintiff’s firm, are offering no good or service ‘for sale.’”
Exclusively Cats, 2020 WL 1249232, at *3. They are thus
outside the scope of the TCPA.
8
would be so if the blood bank relied simply on the kindness of
people to secure its supply of blood. But the distinction
between charitable and mercenary motives highlighted by my
colleagues is nowhere featured in the TCPA. Consider two
hypothetical faxes sent by a blood bank: the first seeks blood
from willing donors, and the second offers money in exchange
for the donations. Can either fax be said to be advertising the
“commercial availability” of blood? Of course not. The blood
banks do not have enough blood available. That’s why they
need the donations. The proffered monetary incentive does not
change that fundamental point.
In sum, both the text of the statute and our prior decision
in Optum foreclose the result the Majority reaches. It is “our
job to apply faithfully the law Congress has written[.]” Henson
v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725
(2017). We should do so and affirm the judgments of the
District Courts. Because that is not the result here, I
respectfully dissent.
9