In Mauthe v. Optum Inc., No. 18-2894, 2019 U.S. App. LEXIS 15742 (3d Cir. May 28, 2019), the Court of Appeals for the Third Circuit held that market surveys were not pretextual advertisements under the TCPA.
Commercial entities conducting research sometimes do so by sending faxes. Under Mauthe’s theory, these firms would violate TCPA’s prohibition on the sending of an unsolicited fax advertisement because they would send their faxes for the purposes of improving their operations and thus [*10] their profits. But such faxes would not promote the sale of any products or services, or seek to influence the purchasing decisions of a potential buyer. We will not adopt a construction that broadly would limit commercial activities to the extent Mauthe invites. See NIA, 2019 U.S. App. LEXIS 11232, 2019 WL 1752591, at *2-3. HN7 The requirement for establishing TCPA liability that we set forth is that there be a nexus between the sending of the fax and the sender’s product or services and the buyer’s decision to purchase the product or services accomplishes the TCPA objective without infringing on other commercial activities.4 Turning to the facts of this case, Mauthe’s claim does not survive our standard for third-party based liability or any other theory of liability under the TCPA. Though defendants intended their faxes to obtain information enhancing the quality of their services, and thus reasonably calculated their faxes to increase their profits by keeping their database updated, the faxes did not attempt to influence the purchasing decisions of any potential buyer, whether a recipient of a fax or a third party. Moreover, the fax sent to Mauthe did not encourage him to influence the purchasing decisions or those of a third party. Though [*11] we appreciate the annoyance and/or harassment Mauthe felt receiving unsolicited faxes, we are constrained in reaching our decision by what HN8 the TCPA actually prohibits—it does not prohibit all unsolicited faxes, just advertisements. We will not distort the meaning of “advertisement” to accommodate Mauthe’s case. Therefore, we will uphold the District Court’s conclusion that defendants’ fax was not an “advertisement” under the TCPA. The District Court also held that the fax was not a pretext to more commercial solicitation. Optum, 2018 U.S. Dist. LEXIS 125796, 2018 WL 3609012, at *7. As we stated in NIA, we have not endorsed and do not now do so the pretext theory of liability under the TCPA, a matter that is still open. 2019 U.S. App. LEXIS 11232, 2019 WL 1752591, at *3. However, for the same reasons that we set forth in NIA in rejecting a pretext claim even if such a claim is potentially viable, Mauthe’s pretext claim fails because there was no evidence that defendants “intended to send Mauthe any future faxes, let alone any more advertisements.” 2019 U.S. App. LEXIS 11232, [WL] at *3 n.4. We recognize that defendants may send Mauthe another fax to verify his information, but that fax will no more be an advertisement than the fax here if it is of similar content. Moreover, there is no evidence that the fax that defendants already [*12] sent was a pretext so that it later could send an additional fax. Thus, we also will uphold the District Court’s ruling that defendants’ fax was not a pretext to further commercial solicitation.