would then use to create a database that option would control the and mr early going to touch upon it but there were q rethink hate the decided one from the eastern district of michigan this week and a nd from the southern district of new york and i realize they are outside the about that and not binding on the circuit that quite informative and in both of those cases the fact is that we're in the form  reasoning of the agent district of michigan and linda noted that that is really out of the with their left of the country the what's what is what's the response you have to  judge greenberg observation that it would it's puzzling to think that congress would say hey you're absolutely forbidden to send people fact they don't want trying to try to sell him something but it's ok for you to sell factum to that they don't want where i'm going to buy something specific legislative history on the point of what is it is not addressed by the t c p a the congress considered it and made a determination to craft the language exactly as they did market product it's the it's a commercial transaction and although it is an advertisement in the same vein as to want that kind of a thing is it end that sensibly should be covered why is that their cases as employment type matters that's what this really is if you want to take it outside of the scope of optima not put it in the rd party liability is where we think it fits and then it doesn't work but if you want to look at it outside of optimum and you look at cases where you're in an employment type atmosphere like we like arguably are here it's not buying their time it's offering an opportunity to be employed because we're an incentive for you to then do the work that we need in the survey itself on the on the material but the law is overwhelmingly clear there and that's in all of the defendants that every for profit entity operates for and for most of purpose to make money if that were there if that were the that afternoon i may please the court this is patrick duran speaking on behalf of the health and science l l c happy to address any of the court's questions but i was specifically tasked with talking about the issue of money cooling property which the court did address early in this argument and i would just like to put a couple more points to discuss st of all if you do look at the statute as was pointed out by the different definition of the word property when it comes to faxes then when it comes to telephone solicitations and that's just not correct the court the supreme court has said  st alvarez that quote identical words used in different parts of the same statute are generally presumed to have the same meaning and quote and that's what you have here the word property is not being modified by those other words it's simply being understood to mean things like real property or the minimum tangible property not cash currency an honorarium which is for certain prescreen individuals nd if you look at the the purpose the evil to be remedied and i submit that this both addresses that money is not property but also the overall scheme and why this is not a statute the prohibit offering an honorarium as an enticement to participate in the survey is because the evil to be remedied as it says in the statute you know the purposes of this law is quote to your big use of the telephone to market goods and services to the home and other businesses is now pervasive due to the increased use of cost effective telemarketing techniques and it talks about quote the thirty thousand businesses actively telemarketing goods and services to businesses and residential customers i think meant that these purposes set forth in the statute itself talk about the evil to the remedy is offering to sell you something not proposing to  this is pure market research there's no discernible that difference between what is happening in both of these cases and pure market research and this court looks at the issue  annoyance and or harassment now be felt receiving unsolicited facsimiles we are constrained in reaching our decision by what to teach d p a actually it does not fit all but with that facsimile just advertisement we will not be sort the meaning of advertisement to accommodate dr mouthpiece kate and quot and we propose that this will be a distortion the trang now that this particular issue is being addressed in the southern district of new york in the eastern district of michigan and in the several cases we cited and being industry than others where an honorarium is being provided there is not you know the greater weight is saying that the offer of an honorarium an enticement to participate on the survey does not transform an otherwise appropriate fact into an unsolicited advertisement that it barred by the the disclaimer on the facts that says this isn't an attempt to tell you anything or that that should not control the outcome of whether it's an advertisement you know what that the defendant does this isn't an advertisement shouldn't influence and the court in determining whether it is not in clute any offer of compensation so and i a an optimum those facts is there was no offer of compensation  question i'll pay it in ad that that's that confined to selling thing and that we've got case a lot of support now that's in artful way of summing up what i'm hearing him say but that's what i'm hearing  want to speak to there are going to there's there are cases that are coming in from various quarters of the country including one from the early days from judge harvey bartle in the true district of pennsylvania well respected judge in our circuit saying you know this this just doesn't pass muster i help wanted ad isn't isn't an ad help wanted kind of a thing over fact not selling something to go ahead and  hire people or something like that i think it was something a little more involved in the dispute that didn't make it into the opinion but there wasn't much of an analysis about why why that why if it's not it's not an advertisement if you there's there's courts that district court that if they have and this court is reviewing district court opinion thank these weren't advertisement thought you know if if those are persuasive to the court then the persuasive i don't know why an eastern district the michigan opinion saying that that's not an ad would be any more persuasive it material to both the teeth e p a and the facts are simply and whether the fact is promoting a tale or promoting a purchase before that the language is pacific about you know some kind of a purchase rental or investment if that if we were to interpret the language in the same way  neighbor a section how do you get around turning that which you have identified money as property how do you how do you get around the language of the statute itself in neighboring confection know looking at that that's an action i think that it could apply to calls seeking to purchase a property including money so how about a call from a money changer who wants to trade you french currency for american currency and the purpose is to encourage you to purchase it or to purchase bitcoins would be property would be  they're tangible property or intangible property but the the word property in that section can mean money it could be the purpose of encouraging the purchase of money in the form of a foreign currency that th the us supreme court when congress includes particular language in one section but omitted in other sections presume they acted intentionally including or excluding it i think you know this is sort of the opposite situation you're saying when they the way they modified what what was being proposed and then used the word property doesn't that mean that the word property is so limited here not to include money