Desire for Profit = Advertising: Not So Fast

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Addressing Mauthe’s arguments regarding the purchasing decisions of third parties, the Third Circuit notably compared the fax to phone calls to residential landlines, highlighting that while residential landline calls are also regulated by the TCPA, such phone calls are exempt from the TCPA if they are not made for a commercial purpose. Relying on the FCC’s 2012 Order which opines that artificially prescribed calls lacking any “solicitation” are not advertisements or telemarketing subject to statutory prohibition, the Third Circuit concluded that surveys, research inquiries, political polling, and similar activities are also not advertisements for the purposes of the TCPA’s ban on unsolicited advertising via fax.


The Third Circuit rejected Mauthe’s theory of TCPA liability bc data china based on a third party’s potential use of the information in the fax and established a new test for demonstrating that a fax contains an advertisement in this context. According to the Optum decision, to establish third party-based liability under the TCPA, a plaintiff must show that the fax:

Sought to promote or enhance the quality or quantity of a product or services being sold commercially;
Was reasonably calculated to increase the profits of the sender; and also that the fax
Directly or indirectly encouraged the recipient to influence the purchasing decisions of a third party in this context.
Practical Implications of this Decision

The Third Circuit’s well-reasoned rejection of an expansive interpretation of “advertising” in this context provides strong precedent for companies that communicate with their clients and members. Almost any message – even those that are strictly informational in purpose – could be considered commercial if you followed the plaintiff’s reasoning here; but the Third Circuit has injected common sense into a statute that is abused daily. Overall, companies must still exercise caution because the question of whether a particular message implicates the TCPA is fact-specific, and this interpretation has not been adopted uniformly across all circuits.