Annoying fax survey does not violate law against annoying fax adverstisements

I've noticed a fair number of cases in the Second Circuit dealing with unwanted fax messages and the Telephone Consumer Protection Act of 1991. You can sue over these unwanted faxes, but the real money is in class actions. This is one of those cases, but there is no case, and thus no class action. Just a recycling bin filled with annoying faxes that no one asked for.

The case is Katz v. Focus Forward, LLP, issued on January 6. The TCPA says you cannot send unsolicited fax advertisements, defined as "any material advertising the commercial availability or quality of any property, goods, or services." You also can't fax surveys that serve as a pretext to an advertisement. The survey part of the statute was enacted in 2006, no doubt to fill a loophole that the fax offenders had been exploiting for fun and profit. 

The fax in this case was a survey stating the Focus Forward outfit was conducting a market research survey, offering $150.00 for the recipient's participation in a 45-minute telephone interview. The faxes are attached as appendices to the Second Circuit opinion; they do not appear to be advertising any service or product so far as I can tell. Indeed, Focus Forward is a market research company. It is not clear if they are selling anything else. Two of these faxes were sent to Katz, a dentist. 

Do these faxes violate the TCPA? The Court of Appeals (Cabranes, Lohier and Lee) says they do not. This is a case of first impression in the Second Circuit, but the Third Circuit has already resolved this issue in a similar case, finding that these faxes do in fact violate the statute. The Second Circuit disagrees with the Third Circuit's analysis, creating a clear Circuit conflict which the U.S. Supreme Court will love to resolve. 

The Third Circuit says the faxes violate the statute because offering money in exchange for participation in a market survey is a commercial transaction, and that therefore "a fax highlighting the availability of that transaction is an advertisement under the TCPA." The Second Circuit sees it differently, finding that the faxes are not really advertising property, goods, or services. "Faxes that seek a recipient's participation in a survey plainly do not advertise the availability of any one of those three things" and thus are not "advertisements" under the TCPA.