TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held that the subject faxes, while unsolicited, did not qualify as advertisements because they did not offer for sale goods, property, or services of any sort. In fact, the TCPA survey faxes only sought to obtain information in exchange for money. The case is captioned Bruce E. Katz, M.D., P.C. v. Focus Forward, LLC (SDNY).

This decision is the latest in a long line of TCPA fax decisions that clarify issues ranging from what type of faxes count as faxes, the role a party’s motivation in sending the fax plays, and the Federal Communications Commission’s (“FCC”) own rulings on the scope of TCPA fax liability.

Is a TCPA survey an advertisement?

Is a TCPA survey an advertisement? As is often the case in the TCPA arena, the short answer is that it depends. The Katz Court’s decision is not binding on any other court, though it is certainly persuasive as the only decision on the subject in the New York-based Second Circuit. Conversely, if a company sends an identical survey invitation in the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware), the company may be held liable for violating the TCPA prohibition on sending unsolicited commercial fax advertisements.

In its decision, the Katz Court spent a good deal of time outlining its outright disagreement with the Third Circuit’s opinion. The Katz Court explained that a stand-alone survey invitation does not itself promote a company or try to sell goods, property, or services Its exclusive purpose is to obtain information for market research. The Third Circuit’s rule, the Katz Court wrote, would effectively turn any fax that included a commercial transaction (like “cash for survey answers”) into an advertisement prohibited by the TCPA. However, the TCPA survey faxes at issue did not promote any product that the company sending the fax had available, which is what the TCPA’s unsolicited fax advertisement ban is meant to prevent. The faxes were, as the Katz Court notes, the exact opposite: they asked for information that was unavailable to the company sending the faxes.

How does the Katz decision impact TCPA defense strategy?

Any single decision from a federal district court is of limited value. One judge in one court interpreted the law in a certain way. Sometimes, however, other judges in other parts of the country latch on to a decision’s reasoning, thus building consensus. In other instances, even judges in the same circuit may disagree and rule inconsistently. What makes the Katz decision different and why it may have more impact than your typical ruling is that it lays out, step by step, the reasons why the Third Circuit’s opinion on TCPA surveys cannot survive further scrutiny.

As demonstrated by the disparate rulings on TCPA surveys, the interpretation of TCPA regulations can vary depending on where the subject plaintiff is and where the applicable telemarketer operates from. Some courts take a narrower view of issues, while others, like the Third Circuit, offer broader decisions. In the end, having a legal team with both deep industry knowledge and a focus on TCPA litigation defense is the best way to help protect your company. Only experience in TCPA litigation defense and a commitment to leading-edge telemarketing compliance can help prevent TCPA problems.

In TCPA trouble? We can help.

Through court decisions and FCC rulings, the TCPA is in a constant state of flux. At Klein Moynihan Turco, our team of experienced TCPA defense attorneys tracks new regulatory developments on a regular basis. That dedication and commitment to finding avenues for success, no matter how recently created, has brought quick resolution to countless cases for our clients over the years.

If you need assistance in defending a TCPA lawsuit or in updating your telemarketing policies and procedures, please email us at or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information herein without seeking the advice of an experienced attorney.

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Appellate Court Revives TCPA Fax Lawsuit


David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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