IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Podiatry in Motion, Inc., )

Plaintiff, )

) No. 20 C 3159

v. )

) Judge Ronald A. Guzmán

Interviewing Services of America, LLC, )

and John Does 1-10, )

 Defendants. )

MEMORANDUM OPINION AND ORDER

For the reasons stated below, Defendant’s motion to dismiss [21] is granted in part. The 

TCPA claim is dismissed for failure to state a claim, and the Court declines to exercise 

jurisdiction over the conversion and trespass to chattels claims. Civil case terminated. 

STATEMENT

Plaintiff sues Interviewing Services of America, LLC (“ISA”) for violating the Telephone 

Consumer Protection Act (“TCPA”) and alleges state-law claims for conversion and trespass to 

chattels. ISA moves to dismiss for failure to state a claim. 

Facts

Plaintiff alleges that it received a fax from ISA in June 2016, addressed to Dr. Michelle 

Heiring, asking her if she would like to participate in a DocThought.com survey and letting her 

know that if she did, she would receive an Amazon gift card as a token of appreciation. 

According to Plaintiff, it did not authorize the sending of the fax, and it and others who received 

the fax were harmed because the fax was an invasion of privacy and consumed the paper and 

ink/toner of the recipients. 

Analysis

ISA asserts that Plaintiff fails to state a claim because the fax is not an advertisement 

under the TCPA, which defines “unsolicited advertisement” as “any material advertising the 

commercial availability or quality of any property, goods, or services . . . .” 47 U.S.C. §

227(a)(5). Similarly, the regulations define advertisement as “any material advertising the 

commercial availability or quality of any property, goods, or services.” 47 C.F.R. §

64.1200(f)(1). The term “advertising” is left undefined. 

The relevant fax states in full:

Dear Dr. Heiring:

Case: 1:20-cv-03159 Document #: 29 Filed: 10/05/20 Page 1 of 4 PageID #:142
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DocThought.com is currently looking for physicians to provide feedback 

for a large-scale market research study. The brief survey will take about 

5-10 minutes of your time. This information will be used to better 

understand trends across the medical field. 

Please take 5-10 minutes to answer some basic questions about your 

practice. For your time, we are offering a token of our appreciation in the 

form of a $15 Amazon gift card. Upon completion, your reward could 

take up to 7 days to process and will arrive via email. You will need to 

provide some basic information to receive your incentive. You will also 

have the option of joining the community and receiving future invitations 

to participate in research. There is no obligation to participate. 

To begin, visit us at http://join.docthought.com and enter the following 

verification code below when prompted.

DocThought.com is one of the ISA family of companies operating under 

the SoapboxSample umbrella. For more than 34 years, ISA has been 

delivering innovative and high[-]quality market research. We follow the 

ethical and methodological standards and best practices of the many 

widely[-]recognized research governing associations. We are committed 

to maintaining the privacy of our research and we never share your 

personably [sic] identifiable information with third parties. 

If you’d like to unsubscribe from receiving future correspondences from 

DocThought, or need additional support, please contact us . . . . 

(Compl., Dkt. # 1, Ex. A.) 

Some courts in this district have followed a two-step approach in addressing whether a 

fax violates the TCPA. First, they determine whether the fax, on its face, constitutes an 

advertisement. See Phillips Randolph Enters., LLC v. Adler-Weiner Rsch. Chi., Inc., 526 F. 

Supp. 2d 851, 853 (N.D. Ill. 2007) (“[M]essages that do not promote a commercial product or 

service . . . are not solicited advertisements under the TCPA.”).

1

 Second, even if the “‘fax on its 

1 See also P&S Printing LLC v. Tubelite, Inc., No. 14 C 1441, 2015 WL 4425793, at *4-5 (D. 

Conn. July 17, 2015) (holding that because the “fax’s primary purpose, on its face, was to 

communicate information,” it “d[id] not constitute an ‘advertisement’ as a matter of law, because 

it does not tend to propose a commercial transaction and does not appear on its face to have been 

sent based on a commercial pretext”); Physicians Healthsource, Inc. v. MultiPlan Servs. Corp., 

No. 12 C 11693, 2013 WL 5299134, at *2 (D. Mass. Sept. 18, 2013) (granting motion to dismiss 

where “the text of the facsimile does not support [the] conclusory allegation” that it “is an 

advertisement promoting defendants’ services”). 

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face is not an overt advertisement,’ courts . . . have . . . then looked to [ascertain] whether the fax 

is a pretext to an advertisement.” James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc., No. 

17 C 884, 2019 WL 4934696, at **3, 5 (N.D. Ill. Oct. 7, 2019). Because Plaintiff neither 

alleges nor argues in its response brief that the fax is a pretext to advertising, the Court does not 

address that question here, and limits its inquiry to whether the fax, on its face, constitutes an 

advertisement. 

According to ISA, this Court should follow other decisions concluding that requests for a 

survey are not advertisements under the TCPA. See, e.g., Exclusively Cats Veterinary Hosp., 

P.C. v. M/A/R/C Rsch., LLC, No. 19 C 11228, 2020 WL 1249232, at *2 (E.D. Mich. Mar. 16, 

2020) (dismissing claim because “the statutory and regulatory text of the TCPA demonstrates

that surveys are not advertisements subject to liability”); Carolyn M. Machonis, O.T., PLLC v.

Universal Surv. Ctr., Inc., No. 18 C 10978, Dkt. # 26, at 1, 10 (S.D.N.Y. Feb. 21, 2020)

(recommending dismissal of TCPA claim because fax invitation to participate in “Vaccines 

Study” survey was not an advertisement); Mauthe v. Nat’l Imaging Assocs., Inc., No. 17 C 1916, 

2018 WL 1960945, at *2 (E.D. Pa. Apr. 25, 2018) (dismissing TCPA claim based on receipt of a 

satisfaction survey via fax because “[a] careful review of the faxed document reveals that it 

neither promotes goods or services, nor seeks to initiate a new transaction”); Davis Neurology, 

P.A. v. BSM DoctorDirectory.com, LLC, No. 16 C 00682, 2017 WL 1528769, at *1 (E.D. Ark. 

Mar. 20, 2017) (dismissing TCPA claim because a fax that “offers a $15 honorarium in exchange 

for the recipient completing a ‘short study on complimentary alternative medicine’” is not an 

advertisement), vacated on other grounds, 896 F.3d 872 (8th Cir. 2018); Phillips, 526 F. Supp. 

2d at 852 (dismissing TCPA claim because a fax that offers a $200 honorarium for participating 

in a research study is not an advertisement). 

In support of its claim, Plaintiff relies on a recent decision from the Third Circuit, in 

which the court addressed “whether faxes soliciting participation by the recipients in market 

research surveys in exchange for monetary payments are advertisements” within the meaning of 

the TCPA. Fischbein v. Olson Rsch. Grp., Inc., 959 F.3d 559, 561 (3d Cir. 2020). The 

Fischbein majority concluded that: 

[T]o be an ad, the fax must promote goods or services to be bought or sold, 

and it should have profit as an aim. In the context where an entity sends a fax 

attempting to make a sale, we held that there must be a nexus between the fax 

and the purchasing decisions of an ultimate purchaser. However, nothing in

[prior caselaw] limits an advertisement to a fax that the sender intends will 

facilitate the sale of a service or product to the recipient. We do not doubt that a 

recipient of a fax offering to buy goods or services from the recipient would 

consider the fax to be an advertisement. After all, a fax attempting to buy goods 

or services is no less commercial than a fax attempting to sell goods or services to 

the recipient and a fax that is an element of a market research survey is just as 

commercial as a fax attempting to sell or buy goods or services to or from the 

recipient. Therefore, it is obvious that a fax seeking a response to a survey is 

seeking a service. 

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Fischbein, 959 F.3d at 562 (internal citation and quotation marks omitted). Pursuant to this 

reasoning, Plaintiff asserts that “a fax seeking to purchase goods or services is just as much a 

commercial advertisement as a fax offering to sell property, goods, or services,” and because 

“the fax [at issue] promotes a service to be bought with profit as an aim,” it falls under the 

protections of the TCPA. (Pl.’s Resp., Dkt. # 25, at 5.) (emphasis added). ISA focuses on the 

dissenting opinion, which argues that the majority substituted its own meaning of the term 

“advertisement” for that provided by the statute, stating:

 

 The [TCPA’s] text should lead us to conclude that the faxes presently at issue are 

 not “unsolicited advertisements,” since they do not advertise the “commercial 

 availability or quality” of anything. Instead, they seek to obtain something – the 

 doctors’ survey responses. That means they are outside the scope of the 

 TCPA. Availability, after all, means “the quality or state of being available[.]” 

Fischbein, 959 F.3d at 565-66 (Jordan, J., dissenting) (citations omitted). 

The Court finds persuasive the reasoning of those courts, including the Fischbein

dissenting opinion, that conclude that surveys are not advertisements within the meaning of the 

TCPA. Limiting the analysis to the language of the statute, as the Court must, the Court agrees 

that the instant fax is not making something commercially available; rather, it is asking for the 

recipient to complete a survey. See Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. 

Supplies, Inc., No. 14 C 5602, 2019 WL 527497, at *4 (N.D. Ill. Feb. 11, 2019) (“The Court 

agrees that the faxes, on their face, do not contain advertising material. Rather, they provide a 

physician with information about his or her patient and ask the physician to perform a service – 

signing off on the prescription.”). Accordingly, ISA’s motion to dismiss the TCPA claim is 

granted. 

ISA also moves to dismiss Plaintiff’s claims for conversion and trespass to chattels on the 

ground that any injury is de minimis. Because the Court is dismissing the TCPA claim, it

declines to exercise supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 

1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim . . . 

if . . . the district court has dismissed all claims over which it has original jurisdiction.”) 

Conclusion 

For the reasons stated above, the motion to dismiss is granted in part. The TCPA claim 

is dismissed for failure to state a claim, and the Court declines to exercise jurisdiction over the 

conversion and trespass to chattels claims. 

Date: October 5, 2020 _________________________________ 

 Ronald A. Guzmàn 

United States District Judge 

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