The Third Circuit Court of Appeal recently ruled favorably on a case relating to the 2017 Insights Association/AAPOR petition to the Federal Communications Commission (FCC) on the Telephone Consumer Protection Act (TCPA).

The FCC hasn't yet ruled on the petition, despite the overwhelming response in support last summer when the FCC asked for comment, and a related petition from SGS in the last couple of months. According to Eric J. Troutman of Squire Patton Boggs, although the FCC hasn't ruled, "the Third Circuit Court of Appeal essentially just did. IA is going to like the results."

The case (Mauthe v. Nat’l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3rd Cir. April 17, 2019)) related to two of the four points in the Insights Association/AAPOR petition (which was broadly about differentiating marketing from marketing research):

  1. communications should not be presumed to be advertising or marketing under TCPA simply because they are sent by a for-profit company, or might ultimately be used at some future date to improve sales or customer relations; and
  2. the presence in a communication, ancillary document or webpage revealing the identity of an organization conducting research – a level of transparency required by professional ethical codes – that can be mischaracterized as "advertising" does not make the communication "dual-purpose."

As Troutman explained, "the Third Circuit Court of Appeal held squarely that a fax containing a survey regarding a customer’s experience with a business is not a solicitation or advertisement, even if it makes reference to the quality of the services offered by the business or references a website where the businesses’ products and services are promoted." He said that the Court rejected the "pretext" argument from the plaintiffs (that the fax was actually a marketing effort despite not containing an advertisement). The decision stated that "[w]e will not adopt a standard under the TCPA which effectively would construe the inclusion of a website address in a fax as de facto advertising."

The court, per Troutman, said that, "asking a recipient in a survey whether a sender’s services meet a standard is not the same thing as claiming the services meet that standard." Troutman highlighted two big pieces of the Third Circuit court ruling:

"We want to make clear that we do not suggest that we endorse the pretext theory of liability under TCPA. We think that in almost all cases, a recipient of a fax could argue under the pretext theory that a fax from a commercial entity is an advertisement. The pretext theory, unless closely cabined, would extend TCPA’s prohibition too far."

and:

"We believe it is important to limit the TCPA to promotion of the sale of goods or services lest any unsolicited fax that a commercial entity sends that contains a phone number or website address conceivably could become an ‘unsolicited advertisement,’ a result that would be inconsistent with the statutory definition of that term."

Troutman felt that the ruling was "exactly the relief sought in the IA petition, and very welcome news for survey senders who often worry that their requests for feedback on their services will be treated as de facto advertisements."