In May, TCPAWorld reported on the decision in Dr. Richard E. Fischbein et al. v. Olson Research Group, Inc. et al., 2020 U.S. App. LEXIS 15592, No. 19-3018, No. 19-3022, United States Court of Appeals for the Third Circuit, May 15, 2020. Olson had sent Dr. Fischbein a fax offering him $150 in exchange for his participation in a study on the management of disorders in neurological patients. Also in the consolidated appeal was Dr. Richard Mauthe, whose litigation against survey faxes has been the subject of several TCPAWorld reports. Indeed, the District Courts applied the Circuit’s Mauthe v. Optum, Inc., 925 F.3d 129 (3d Cir. 2019) decision in dismissing both cases, concluding that “such surveys are not advertisements within the TCPA because they did not attempt to sell anything to their recipients.”
But in a 2-1 decision the Third Circuit ruled that “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.” (https://tcpaworld.com/2020/05/18/survey-faxes-offering-honorarium-contain-advertisement-for-tcpa-purposes/)
ITG, Inc. (along with two of its affiliates), a research firm affected by the ruling, asked the the Court to reconsider the split decision en banc. Their petition asserted that the survey outreach contained no solicitations or advertisements for any products or services. Further, the faxes did not impact any third-party purchasing decisions; thus, the offer of a payment to qualified participants was irrelevant. Finally, they asserted that the May ruling was inconsistent with the definition of “unsolicited advertisement” and ignored Federal Communications Commission guidance.
To no avail. In a short order dated July 14, 2020, the Third Circuit reported that only four of the judges qualified to vote on the matter supported rehearing en banc, short of a majority of the fourteen qualified judges in active regular service. So the May ruling stands for now.