Second Circuit Diverges from Third, Holds that an Unsolicited Invitation to Participate in a Survey is Not Actionable Under the TCPA

The Second Circuit recently addressed whether a faxed invitation to participate in a market research survey is an “unsolicited advertisement” actionable under the TCPA. In Bruce Katz, M.D., P.C. v. Focus Forward LLC , 22 F.4th 368, 374 (2d Cir. 2022), the Court of Appeals held that under the plain text of the TCPA, an offer to participate in a survey, without more, is not an advertisement because it does not communicate the “availability or quality of any property, goods, or services.” Id. at 372.

The dispute arose from defendant Focus Forward LLC’s two faxes to plaintiff Bruce Katz, M.D., P.C., a medical services company.  Id. at 370.  The faxes offered $150 in exchange for participation in a market research study.  Id.  Plaintiff initiated a putative class action lawsuit in the Southern District of New York alleging violations of the TCPA, but the federal district court dismissed the complaint, agreeing with Defendant that an invitation to participate in a market research survey was not an unsolicited advertisement within the bounds of 47 U.S.C. § 227.  Id.