A federal judge in New Jersey affirmed a $22.4 million statutory damage award to class members for the defendant’s violation of the fax advertisement law under the Telephone Consumer Protection Act.
Business owners can be held directly liable for unsolicited fax advertisements sent by third party agencies promoting the business’s goods or services under the Telephone Consumer Protection Act or TCPA.The TCPA nor the court distinguished between phone calls and faxes. With this recent decision it is possible more companies may face claims for blast-fax campaigns.
City Select Auto Sales and other businesses sought relief after the defendant, David Randall Associates, a roofing company, authorized a third party - Business to Business - to transmit unsolicited advertisements 44,832 times to 29,113 different fax numbers.
Several other businesses complained about the faxes and stated the ‘opt out’ 800 number was unavailable. A number customers also threatened to file action against Randall. Despite the complaints, the defendant continued to have fax blast campaigns sent.
Sent ads without permission
The class action complaint alleged the defendant sent advertisements to thousands of fax numbers without prior permission or invitation.
The defendant moved for summary judgment, stating the plaintiff class failed to state a claim under TCPA because the defendant was not physically sending the faxes. The motion was denied.
The TPCA prohibits unsolicited advertisements without the prior consent of the recipient. It is the plaintiffs’ burden to sufficiently establish:
1. The defendant utilized a “telephone facsimile machine” to send one or more faxes.”
2. that the transmissions constituted “advertisements.”
3. that the defendant sent he transmissions without the recipient’s consent, absent application of a statutory exception.
Defendant liable for third party advertiser
Addressing each element, first the court determined the advertisement focused on David Randall’s roofing services and were approved for transmission by the owner.
Second, fax advertisements are not prohibited if the sender is a business with an existing relationship with the recipient and the sender obtained the fax number through a website.
According to the FCC, this alone does not permit someone to pull the fax number from an existing website and begin blast-fax campaigns. The advertiser must obtain consent from the recipient to legally solicit business through fax.
This leads to the third element where there must be evidence that the class action members sufficiently publicized their numbers or had a relationship with the defendant. Sufficiently publishing means either directly providing the information or providing express permission.
In sum, to advertise via fax legitimately, the sender must have a record that the recipient gave permission or directly provided the information to the sender. Without the recipients consent the business advertising the goods or services can be held liable for the actions of third party entities.
In the court’s recent decision in Palm Beach Golf Center-Boca, Inc v. Sarris, it found the defendant liable for his connection to a third party advertiser, which faxed unsolicited dental advertisements to the golf center. 771 F.3d 1274 (11th Cir. 2014).
Relying on this decision, the court re-emphasized the entity can be held strictly liable for unsolicited advertisements despite not physically sending the fax under the TPCA.
City Select Auto Sales Inc v. David Randall Associates, Inc, et al., No 11-2658, 2015 WL 1421539 (D.N.J. March 27, 2015)