What Type of Fax is a TCPA Advertisement?

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The Telephone Consumer Protection Act (“TCPA”) prohibits the sending of unsolicited commercial fax advertisements. Pursuant to the TCPA, companies cannot send advertisements via telecopier without a pre-existing business relationship or consent. The Second Circuit recently addressed the question of whether a fax to a doctor’s office inviting the doctor to a seminar sponsored by Merck constitutes a TCPA advertisement.

In a case captioned Kaye v. Merck & Co. (2d Cir. 2021), the Court held that a reasonable doctor should know that a seminar sponsored by Merck would likely include information promoting Merck’s products. Last year, the Third Circuit held that a fax survey is a TCPA advertisement in a case captioned Fischbein v. Olson Research Group, Inc. (3d Cir. 2020). These two decisions, while addressing different facts, should be read together to give companies a more complete picture of what type of fax will be considered a TCPA advertisement within the statute.

How are an invitation to a seminar and a survey related as TCPA advertisements?

For years, telemarketing companies operated on the belief that if they sent a fax that was not an advertisement, they would not face TCPA liability. This guiding principle proved useful in efforts to conduct market research through faxed surveys or to promote seminars through faxed invitations. Within the last year, courts have upended those underlying assumptions.

In Fischbein, the Third Circuit held that a fax soliciting the sale of goods or services to the recipient is not meaningfully different from one seeking to purchase services (i.e., completing a survey) from the recipient. Both types of faxes share a common commercial purpose. While the Third Circuit’s Fischbein opinion determined that a faxed survey is a TCPA advertisement, the Second Circuit’s lower courts have thus far expressed a different view on similar facts. It remains to be seen whether the Second Circuit would agree that a survey is an advertisement.

How does a seminar invitation fit into this framework? The motivation behind sending the fax is what matters. Just as the Third Circuit held that a survey is a TCPA advertisement because its ultimate goal is commercial, so too is the motivation behind a sponsored seminar. In the Kaye decision, the Second Circuit focused on a commonsense approach: a reasonable doctor would know that a drug company’s seminar on the topic of a particular disorder would include a presentation on why that drug company’s products are the best way to treat the disorder.

Bolster your TCPA compliance by hiring experienced telemarketing attorneys.

In sum, if the motivation to send a given fax is commercial, then the fax will be deemed an advertisement under the law. Both Fischbein and Kaye uphold that proposition. But the law continues to develop, decision by decision, in courts around the country and not always uniformly. In the Third Circuit (New Jersey, Pennsylvania, and Delaware), a faxed invitation to participate in a market research survey might be a TCPA advertisement. In the Second Circuit (New York, Connecticut, and Vermont), the law may be different. How can your company keep pace and remain TCPA compliant? The answer is simple: hire a team of experienced attorneys that focus on TCPA compliance and TCPA litigation defense.

The attorneys at Klein Moynihan Turco, LLP are experienced in providing the kind of advice that can help keep your company TCPA compliant and out of costly and time-consuming TCPA litigation. If you need assistance with updating your telemarketing policies and procedures or defending against a TCPA lawsuit, please email us at info@kleinmoynihan.com 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 contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, 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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