Insights Association Presses FCC for TCPA Clarity

Newly merged US trade body the Insights Association has called on the Federal Communications Commission (FCC) to recognise and clarify the distinction between market research and advertising, in comments relating to a TCPA class action against member company M3 USA.

The Association says the FCC must confirm that 'invitations to participate in marketing research studies do not constitute 'advertising' under the TCPA'. The Association says M3 faces a class action lawsuit from 'a serial plaintiff who exercised considerable alchemy to conjure a lawsuit, refiling it multiple times to tailor it differently, including trying to rope in unrelated aspects of the research company's privacy policy and terms of use in justification of the suit'. However, IA says its concerns go beyond the suit and beyond faxing to the more general assertion that 'marketing research is somehow a form of (or related to) marketing' - which it says 'represents a profound misconception about the nature of marketing research' - and at worst is a cynical legal ploy to expand the number of TCPA lawsuits.

M3's own petition says that like many other legitimate businesses, 'its survey invitations have become the target of abusive TCPA litigation threatening ruinous statutory damages' - and exploiting 'a lack of obvious clarity from the FCC on what constitutes advertising', creating 'a cloud of uncertainty and intolerable risk for legitimate survey businesses'. The petition, support by the IA, states that:

1. 'Informational faxes are not pretexts for advertisements under the TCPA unless the transmission promotes specific, commercially-available property, goods or services to the recipient of the fax;
2. Market research surveys do not constitute property, goods or services vis-à-vis the persons taking the surveys under the TCPA; and
3. Invitations to participate in market research surveys are not advertisements under the TCPA unless commercially-available property, goods or services are promoted in the fax itself or during the survey itself'.

The suit is one of fourteen TCPA actions filed between May 31st and June 10th 2016 by plaintiff Comprehensive Health Care Systems of The Palm Beaches - of which all but three were voluntarily dismissed; and is based on a single fax received inviting participation in a survey, but said by the plaintiff to 'advertise paid online surveys'. M3 says despite their disappearance elsewhere faxes are 'still the dominant means of communication in the medical field, and a useful method 'to inform healthcare professionals' about marketing research opportunities and help researchers 'reach a broad, representative sample of prospective respondents'.

Web site: www.insightsassociation.org .