The "overwhelming response" to a Federal Communications Commission (FCC) petition on the differentiation of marketing research from marketing in the Telephone Consumer Protection Act (TCPA) "further proves" the arguments of the petitioners.

Last year, the Insights Association and the American Association of Public Opinion Research (AAPOR) filed an FCC petition to clarify the difference between marketing research and marketing in the Telephone Consumer Protection Act (TCPA), eliminate unnecessary lawsuits, and reduce the costs and increase the acceptance and use of marketing research. The agency recently called for comments from the public to help consideration of the petition.

243 members of the Insights Association and AAPOR weighed in at the FCC during this period (see the honor roll below).

The Insights Association replied to a submission from trial lawyers Anderson + Wanca that the petitioners said "misrepresents the Petition, and is ultimately unpersuasive." The petitioners particularly rejected the trial lawyers' attempt to disregard a number of relevant court rulings because they "occurred at the pleading stage" and were thus "somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration" by the FCC. To the contrary, the two research trade associations noted that the trial lawyers' arguments are "unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery." In fact, trial lawyers "often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process."

Now that the public comment process is complete, the FCC may rule on the matters raised by the petition at any time. Especially since only one negative comment was registered (and now rebuffed), it is probble that these issues will be resolved as part of the comprehensive TCPA rule rewrite coming soon.

This post includes the honor roll of researchers who submitted comments, then the full Reply Comments from the Insights Association and AAPOR.

Honor Roll: Comments from 243 members of the marketing research and data analytics industry

We owe a great debt to the following members of the Insights Association who filed FCC comments in support of the petition:

  1. J.D. Power /article/fcc-action-needed-curtail-tcpa-trial-lawyer-fishing-expeditions
  2. Carlos Garcia, Garcia Research
  3. Jordan Peugh, SSRS
  4. Melissa J Herrmann, SSRS
  5. Eran N. Ben-Porath, SSRS
  6. David Dutwin, SSRS
  7. Susan Sherr, SSRS
  8. Deborah Winneberger, SSRS
  9. Robyn Rapoport, SSRS
  10. Jeb Bullis, Voxco
  11. George Brezny, GB Marketing Research Solutions -
  12. Willy Kaplan, California Survey Research Services
  13. Andrew Richardson, Lucidity Research -
  14. Julie A. Davis, Xcel Energy -
  15. David Lustig, Optimum Solutions Corporation/OSC World
  16. Crystal MacAllum, Westat
  17. Shawn Herbig, IQS Research
  18. Alan Appelbaum, Market Probe International
  19. Michael Halberstam, ISA
  20. Mark Rosenkranz, Pacific Market Research
  21. David Stewart, Loyola Marymount University
  22. Jeff George, WBA Research
  23. Lara Pow, SQM
  24. Bob Davis, Davis Research
  25. Joseph Harmon, Harmon Research Group
  26. Valerie Lykes, J.D. Power
  27. Shirley Panek, Confirmit
  28. Kim Dorazio, M. Davis and Company
  29. Eric Jodts, Westat
  30. Gary Langer, Langer Research Associates
  31. Christine Filer, Langer Research Associates
  32. Carol Haney, Qualtrics
  33. Paul Nnanwobu, Random Dynamic Resources
  34. Ruth Bernstein, EMC Research
  35. Jason Eric Saylor, MAXimum Research
  36. Randa Bell, ASDE Survey Sampler
  37. Ricki Jarmon, Abt Associates
  38. Michael Link, Abt Associates
  39. Stephanie Marken, Gallup
  40. Ann Fouts, WSECU
  41. Frances M Barlas, Gfk
  42. Carla Lindemann, Issues & Answers Network
  43. Gregg Kennedy, Issues & Answers Network
  44. James Ratto, Survox
  45. Larry Hooper, Russell Marketing Research
  46. William Kirk, Russell Marketing Research
  47. John Hunoval, Russell Marketing Research  
  48. Ricardo Pereira, Russell Marketing Research
  49. George Djecki, Russell Marketing Research  
  50. Kristy De Biasio, Russell Marketing Research
  51. Rob Cohen, Russell Marketing Research
  52. Warren Comunale, Russell Marketing Research
  53. John Wackerow, Russell Marketing Research
  54. Eric Hunter, Russell Marketing Research (not
  55. Amity Menard, Russell Marketing Research  
  56. Thomas DeBiasio, Russell Marketing Research  
  57. Marc Goulet, Russell Marketing Research  
  58. JoAnn Kirk, Russell Marketing Research
  59. Althea Nicholas-Wood, Russell Marketing Research
  60. Gregg Peterson, University of Michigan Institute for Social Research
  61. Michael Brillantes, Russell Marketing Research
  62. Gerard Holzbaur, Marketing Systems Group
  63. Matt Hancock, Charter Oak Field Services -
  64. Mindy Rhindress, Queens College -
  65. Carol Shea, Olivetree Research -
  66. Patrice Wooldridge, Wooldridge Associates
  67. Susan Saurage-Altenloh, Saurage Research
  68. Jonathan Meyers, J.D. Power
  69. Lance Hoffman, Opinion Access
  70. Andrew Caporaso, Westat
  71. Lee Quintanar, J.D. Power
  72. Seth Brohinsky, Abt Associates
  73. Jordan Klein, Abt Associates
  74. Annie Weber, Gfk
  75. Lynn Stalone, I/H/R
  76. Andrea J Sedlak, Westat
  77. Allen Porter, Survox
  78. Allison De Jong, Langer Research Associates
  79. Angelique Uglow, ReconMR
  80. Nancy Hernon, G3 Translate
  81. Melissa Waetzman, RTi Research
  82. Robert Lederer, RFL Communications
  83. Kim Adams, SNG Research Corporation
  84. Pam Kleese, Homesteaders Life Co.
  85. Jesse Armitage, J.D. Power
  86. Laura Bredenfoerder, BValley Communications and Market Research
  87. Andrew Teblum, Mars Research  
  88. Eric S. Levy, Research Now - SSI
  89. Richard Worick, MSR Group
  90. Connie Dey-Marcos, Credit Union National Association
  91. Terry Lawlor, Confirmit
  92. Michael McGuire, McGuire Research Services
  93. Melissa Skogan, Assa Abloy Door Security
  94. Tara Hutton, Hilton
  95. Brenda Cronin, DentaQuest
  96. Judy Patton, Research Between the Lines
  97. Elizabeth Marie Herceg, National Association of REALTORS®
  98. Brian Jones, Chadwick Martin Bailey
  99. Lynn Welsh, Olson Research Group
  100. Tamara Kenworthy, On Point Strategies
  101. Bob Graff, MarketVision Research
  102. William Friedrich, M3 Global Research
  103. Dave Rothstein, RTi Research
  104. Michael Mermelstein, Nichols Research
  105. Catlin McAteer, Connected Research & Consulting
  106. Michael Lloyd, Vectren
  107. Marcie Berenson, Connected Research & Consulting
  108. Glenn Berenson, Connected Research & Consulting
  109. Wayne Marks, HANSA/GCR
  110. Merrill Shugoll, Shugoll Research
  111. Brian S Lunde, CMI
  112. Karen Phillips, Epsilon
  113. Giovanni Nunez, Connected Research & Consulting
  114. Martha DeReamer, Matrix Group
  115. Simon Chadwick, Cambiar Consulting
  116. Julie Medalis, Brain Pot Pie
  117. Connie Cuff, Russell Marketing Research
  118. Barbara Babula, Russell Marketing Research
  119. Lynda Manning, Radius Global Market Research
  120. Bill Dalbec, APCO Insight
  121. Bill Denk, MMR Research Associates
  122. Lisa Mancini, Global Data Collection Company
  123. Bob Torongo, GfK Custom Research
  124. Roberta Janasz-Nagle, RTi Research
  125. Ivy Boehm, JP Morgan Chase
  126. Walter Blotkamp, MMR Research Associates
  127. Kevin Jenne, Liberty Mutual Insurance
  128. Christopher Connolly, the Logit Group

And to the following members of AAPOR who filed comments at the FCC in support of the petition:

  1. mei ding
  2. Heather Morrison
  3. Timothy Triplett
  4. Deborah Beck
  5. Mark A Serafin
  6. Sunghee Lee
  7. Steve Schwarzer
  8. James Cassell
  9. Jennifer Oliver
  10. Terry Lyons
  11. Tim Vercellotti
  12. Donglin Zeng
  13. Michael Binder
  14. Rob Farbman
  15. Stephanie Slate
  16. Randall Brown
  17. Kathleen Call
  18. Elihu Katz
  19. Michael Traugott
  20. Edward P Freeland
  21. Veronica Jones
  22. Lee M. Miringoff, Barbara L. Carvalho
  23. G. Evans Witt
  24. Trent Buskirk
  25. Ann Arthur
  26. Amy Sue Goodin
  27. Barbara Kerschner
  28. Janice Larson
  29. Stephanie Eckman
  30. Christopher Re
  31. Jamie Ridenhour
  32. Brian Brox
  33. Alan Roshwalb
  34. Chris Anderson
  35. Matt Hubbard
  36. Brian Robertson
  37. Paul Braun,David Oshman,Cynthia Lynn Miller
  38. John Nienstedt, Competitive Edge Research
  39. Goodwin Simon Strategic Research
  40. Harry L. Wilson
  41. Thomas and Dorothy Leavey Center for the Study of Los Angeles
  42. Jeff Bontrager
  43. Lisa Halm-Werner
  44. Liz Hamel
  45. Robert J Stead
  46. Ashley Koning
  47. David Keating
  48. Bistra Anatchkova, Brian Harnisch
  49. Kerryann DiLoreto
  50. John Charles
  51. Ronald E. Langley
  52. Kenneth Winneg
  53. Monika McDermott
  54. Ashley Clark,Lilian Yahng,Jesse Talley
  55. Casey J. Mier
  56. Hugh M. Clark
  57. Frederick S Rose
  58. Nora Cate Schaeffer
  59. Charles D. Shuttles
  60. Janice Ballou
  61. Julia Tomassilli
  62. Jacob Rubinstein
  63. Peggy Krecker
  64. Bittie Behl-Chadha
  65. Janet streicher
  66. Stanislav Kolenikov
  67. Andrew Defever
  68. Andrew E. Smith
  69. Leah Roberts
  70. Jennifer Dykema
  71. David G. Taylor
  72. Jill Darling
  73. Matthew Stark
  74. Heidi Grunwald,Keisha Miles,David Tucker
  75. Alisha Creel
  76. Craig Helmstetter
  77. Mary Losch
  78. Mark Noyes
  79. Paul J Lavrakas
  80. David Metz
  81. Robert Oldendick
  82. Matthew Boxer
  83. Hank Zucker
  84. Robert P. Daves
  85. G. Donald Ferree, Jr.
  86. Jon Krosnick -
  87. Edward Chervenak
  88. Joshua Starr
  89. Brady T. West
  90. Robert Agans
  91. Colm O'Muircheartaigh
  92. Krista Jenkins
  93. Simmons Research
  94. Jolene D. Smyth
  95. Christopher P. Borick
  96. Xiaolei Pan
  97. Chintan Turakhia
  98. Robert L Santos
  99. Beth Webb
  100. Social and Economic Sciences Research Center (Rose Krebill-Prather)
  101. Mechelle Timmons
  102. Unknown
  103. Patty Meyer, UM ISR
  104. Lisa Straney
  105. Amber Ott
  106. Kristen Conrad
  107. Andy Peytchev
  108. Jody Dougherty
  109. Martha Van Haitsma
  110. Michael Schober
  111. Nancy Belden
  112. stephen gonot
  113. David DesRoches
  114. Patrick Murray
  115. Michelle Jones

Read the full comments in pdf or below:

The Insights Association, Inc. (“Insights Association”) and the American Association for Public Opinion Research (“AAPOR”) (collectively, “Petitioners”) are leading trade associations for the survey, opinion and market research industry. Together, they filed a petition for declaratory ruling (the “Petition”) on October 30, 2017, asking the Commission to clarify four areas under the Telephone Consumer Protection Act (“TCPA”) which directly impact their industry, including that “communications are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations.”[1]

The Consumer & Governmental Affairs Bureau sought comment on the Petition on May 23, 2018. Since that time, at least 235 members from Insights Association and AAPOR have filed comments requesting the Commission adopt the rulings suggested in the Petition.[2]

This overwhelming response further proves the Petition’s argument: Namely, that in spite of decades’ worth of direction from the Commission that survey, opinion, and market research is not telemarketing, the market research industry has come under assault by a predatory plaintiffs’ bar, and urgent action is needed to curb TCPA abuses. Petitioners again reiterate their call for the Commission to adopt the rulings suggested in the Petition.

Among the comments filed since May 23, Petitioners locate only one in opposition to the Petition (the “A+W Comment”).[3] For the following reasons, Petitioners believe the A+W Comment misrepresents the Petition, and is ultimately unpersuasive.


The A+W Comment argues that three cases cited in the Petition—Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc.;[4] Sandusky Wellness Ctr., LLC v. Medco Health Sols.;[5] and Physicians Healthsource, Inc. v. Stryker Sales Corp.[6]—are “radically misconstrue[d]” by Petitioners, because the faxes at issue in these cases did not involve “survey, opinion, and market research studies.”[7] According to A+W, “[a] closer reading of these cases demonstrates that the Insights Petition presents no genuine ‘controversy’ or ‘uncertainty’ for the Commission to resolve.”[8]

Petitioners response to this objection is three-fold. First, the Petition does not, in fact, suggest that the faxes at issue in Boehringer, Stryker Sales, and Medco were surveys. The Petition clearly explains that Boehringer and Stryker Sales involved seminar invitations, and that Medco involved an informational list of medications.[9] These cases were cited to illustrate the “argument from the profit motive,” which has the potential to affect any number of communications, including but not limited to surveys, that have traditionally been exempted from the FCC’s conceptions of “advertising” and “telemarketing” under the TCPA.[10]

Second, the A+W Comment treats the three cases mentioned above as a group, and suggests that, because they did not involve surveys, they are somehow irrelevant to Petitioners concerns. In so doing, A+W glosses over the fact that theses cases are directly at odds with one another. The Boehringer court, in concluding that informational faxes may be advertisements, reasoned that “[b]usinesses are always eager to promote their wares and usually do not fund presentations for no business purpose.[11] Likewise, the Stryker Sales court reasoned that “the information referenced on the fax could have led primary care physicians to refer more patients or discuss orthopedic products more frequently, and this in turn could stimulate demand for Defendants’ products.”[12] Each of these were examples of the “argument from the profit motive” which Petitioners have requested the Commission correct. In contrast, the Medco court explained that “[t]he fact that the sender might gain an ancillary, remote, and hypothetical economic benefit later on does not convert a noncommercial, informational communication into a commercial solicitation.”[13] This rationale was offered by Petitioners as an alternative route for the Commission to formally endorse. As highlighted in the Petition, the differences between these cases is precisely the kind of “uncertainty” or “controversy” which the Commission can – and should -- clarify.   

Third, the A+W Comment conveniently fails to mention that the Petition’s lead example of the “argument from the profit motive” is Samuel Katz v. American Honda Motor Co., Inc.,[14] a TCPA class action involving customer service surveys. In Katz, the plaintiff argued that the calls were made “with the ultimate purpose of building clientele and repeat customers.”[15] Despite no support for this anywhere in the TCPA or the FCC’s previous guidance, the court bought the plaintiff’s argument, reaching the conclusory determination that “the calls to Plaintiff were advertising because they were made for customer service purposes and to increase future sales and revenue.”[16] As argued in the Petition, the court’s conclusion was in direct contradiction with decades of the Commission’s guidance on market research and surveys, and with the Commission’s guidance on customer service calls in particular.[17] In short, the Petition highlights a number of cases which illustrate the “argument from the profit motive,” some of which involved surveys and some of which did not. The A+W Comment conveniently ignores this fact.


The A+W Comment also contends that Comprehensive Health Care Systems of the Palm Beaches, Inc. v. M3 USA Corporation[18] is irrelevant to Petitioners’ arguments around “dual-purpose” communications because M3 “does not mention the word ‘purpose,’ let alone ‘dual-purpose’ and does not rely on the ‘dual-purpose’ ruling in the 2003 Order in any way.”[19] According to A+W, because the M3 case involved the Commission’s 2006 Junk Fax Order,[20] and specifically the ruling that a fax may be a mere “pretext” to a later advertisement, it does not illustrate a conflict or uncertainty with respect to the Commission’s broader “dual-purpose” framework.

But A+W ignores the fact that the Commission’s “pretext” rules, in the fax context, extend directly from broader questions about the “purpose” of a communication. When the Commission first laid down its “pretext” rule in 2006, it cited to the TCPA’s “telephone solicitation” definition: “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.”[21] In other words, the reason for the Commission’s “pretext” rule is that a “pretextual” fax is in fact a kind of “dual-purpose” communication. The Boehringer court’s analysis is also instructive on this score. After citing the Commission’s Junk Fax Order, the court reasoned as follows: “where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.”[22] More generally, and as discussed below, it is simply incorrect for A+W to suggest that the fax and telephone rules exist in non-overlapping spheres.


In addition to misrepresenting the nature of the “pretext” rule, the A+W Comment attempts to carve out faxes from the purview of the Petition in two other ways. First, A+W notes that the Dish Network decision concerned telephone calls, not fax communications, and that the Commission and courts generally decline to go through a “vicarious liability” analysis at all in the fax context. Of course, insofar as A+W is asserting that market research firms should never be liable in the fax context when communicating on behalf of a corporate client, Petitioners agree. However, Petitioners strongly disagree that the vicarious liability rules as they relate to market research firms, regardless of the mode of communication, do not present any uncertainty or controversy for the Commission to address. In Petitioners’ view, a generalized ruling from the Commission that its vicarious liability rules are specific to telemarketing, and do not apply to survey, opinion, and market research, would bring much-needed clarity to an area where much uncertainty still exists.

Second, A+W echoes its earlier pronouncements that the Petition’s citations to Boehringer, Stryker Sales, and Medco are inapposite to the questions at hand, and argues that these cases present no controversy or uncertainty. Here, Petitioners reiterate their earlier responses: these three cases were presented together with Katz (which was about survey research); these three cases are in conflict with one another; and the “argument from the profit motive” is directly relevant to all “informational” or non-telemarketing communications, including but not limited to surveys. Because courts, as illustrated by the Petition (and as illustrated by the Commission’s repeated need to mark out research from marketing over the years), do in fact struggle to understand the business model of survey, opinion, and market research firms, the fourth issue raised by Petitioners likewise presents an uncertainty or controversy for the Commission. The aim of Petitioner’s fourth requested ruling is simply for the Commission to elaborate on its long-established position on market research. This ruling would have general application to both telephone calls and fax communications.


Finally, the A+W Comment seems to argue that, because a number of the court rulings cited by Petitioner occurred at the pleading stage, somehow these cases are less important, or do not present uncertainty or controversy ripe for consideration by the Commission.[23] Petitioners would like to note that this argument from A+W is unsurprising, given how critical it is to the business model of a certain segment of the plaintiff’s bar that a high number of TCPA cases proceed to discovery. This is exactly the problem Petitioners are trying to address, and exactly why 235 Insights Association and AAPOR members have filed comments in support of the Petition. Law firms like A+W often file unwarranted TCPA suits knowing that, precisely because of the kind of areas of uncertainty highlighted by the Petition, legitimate, well-intentioned businesses will be forced to settle these cases for high dollar values or else risk proceeding through a protracted and costly litigation process.

The fact is the questions presented by the Petitioners are questions of law, not questions of fact, and questions which can (and should) be entertained and addressed by courts at the pleading stage. Additional guidance from the Commission, therefore,  on the four points raised by Petitioners would provide much needed clarity, and will allow courts to better understand how market research is treated under the TCPA, and in so doing restore a measure of efficiency and fairness to TCPA litigation.


[1] See Petition at 1 (requesting the following four rulings: “(1) communications are not presumptively “advertisements” or “telemarketing” under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations; (2) the presence in a communication, or some other ancillary document or webpage, of a marginal element that might arguably be considered advertising does not convert the communication into a “dual-purpose” communication; (3) survey, opinion, and market research firms are not subject to the Commission’s vicarious liability regime as articulated in Dish Network; and (4) survey, opinion, and market research studies do not constitute goods or services vis-à-vis the respondent (the participant in a research study), and are not transformed into goods or services merely because they include some nominal inducement to participate”).

[2] See Exhibit A, attached hereto, for a list of members who have commented.

[3] Anderson + Wanca’s Comments on Petition for Declaratory Ruling of Insights Association and AAPOR, CG Docket No. 02-278 (June 22, 2018).

[4] 847 F.3d 92 (2d Cir. 2017).

[5] 788 F.3d 218 (6th Cir. 2015).

[6] 65 F.Supp.3d 482 (W.D. Mich. 2015).

[7] A+W Comment at 2.

[8] Id.; see 47 CFR § 1.2(a) “The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty.”

[9] See Petition at 13 (“In Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., the Second Circuit was asked to consider whether a seminar invitation constituted an advertisement under the TCPA.”); id. at 11 (“Likewise, in Physicians Healthsource, Inc. v. Stryker Sales Corp., a district court in Michigan held in 2015 that a defendant’s seminar invitation could be an advertisement under the TCPA.”); id. at 15 (“In Medco, the defendant sent a fax listing medications available through a particular health plan.”).

[10] See Petition at 1 (requesting a ruling that all “communications,” not just surveys, “are not presumptively ‘advertisements’ or ‘telemarketing’ under the TCPA simply because they are sent by a for-profit company”).

[11] 847 F.3d 95-96 (2d Cir. 2017) (emphasis added).

[12] 65 F.Supp.3d at 493 (emphasis added).

[13] 788 F.3d at 225.

[14] Order Re: Defendants’ Joint Motion for Summary Judgment, No. 2:15-cv-04410 (C.D. Cal. May 12, 2017) (“Katz MSJ Denial”).

[15] First Amended Class Action Complaint, Samuel Katz v. American Honda Motor Co., Inc., No. 2:15-cv-04410 (C.D. Cal. Aug 19, 2016) (“Katz Complaint”) (emphasis added).

[16] Katz MSJ Denial at *4 (emphasis added).

[17] See Petition at 10-11 (discussing the Commission’s conclusion that certain kinds of customer service calls may constitute telemarketing, but only if they also incorporate a direct link to marketing or sales efforts).

[18] Order on Defendants’ Motion to Dismiss and Motion to Stay, Comprehensive Health Care Sys. of the Palm Beaches, Inc. v. M3 USA Corp., No. 16-cv- 80967, 2017 WL 108029 (S.D. Fla. Jan. 11, 2017).

[19] A+W Comment at 5.

[20] In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, Report and Order and Third Order on Reconsideration, 21 FCC Rcd. 3787 (2006) (“Junk Fax Order”).

[21] Id. at ¶ 54 (“Finally, we conclude that any surveys that serve as a pretext to an advertisement are subject to the TCPA’s facsimile advertising rules.”) (citing 47 U.S.C. § 227(a)(4) and 47 C.F.R. § 64.1200(f)(10));

[22] 847 F.3d at 95-96; see also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition for Expedited Declaratory Ruling of M3 USA Corporation, CG Docket No. 02-278 (March 20, 2017).

[23] See A+W Comment at 3 (The Second Circuit reversed the dismissal, ruling that “at the pleading stage, where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services.” (emphasis in A+W Comment)); id. at 6 (“The court did not rule that the faxes “were . . . mere ‘pretexts,’” as the Insights Petition incorrectly states; it merely ruled that the plaintiff had adequately alleged a pretext to survive a motion to dismiss and obtain discovery.”).