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But I didn’t send that fax: Eleventh Circuit expands the scope of liability to businesses under the TCPA for unsolicited faxes.

But I didn’t send that fax: Eleventh Circuit expands the scope of liability to businesses under the TCPA for unsolicited faxes.

Marketing and advertising is a major component of most businesses. In fact, many businesses hire marketing companies or advertisers to help promote their businesses. Recently, the Eleventh Circuit Court of Appeals addressed the issue of a business’s liability for unsolicited fax advertisements sent by a third party advertising company.

In Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., a dental practice hired a marketing manager and gave that marketing manager “free reign” to market the dental practice. The marketing manager then enlisted the services of a third party advertiser to send “mass fax advertisements” promoting the dental practice. The third party advertiser successfully transmitted over 7,000 unsolicited fax advertisements.

When one recipient of such a fax sued the dental practice, the District Court granted summary judgment in favor of the dental practice when the plaintiff could not prove that the dental practice was vicariously liable for the marketer under the Telephone Consumer Protection Act of 1991 (“TCPA”). The District Court’s ruling was based on a 2012 Federal Communications Commission (“FCC”) declaratory ruling that “an unsolicited fax transmission constituted a violation of the TCPA only by the person actually transmitting the fax itself”, but a “person who did not physically transmit a fax… could be held liable under the TCPA only vicariously under federal common law principles.”

On appeal, the plaintiff argued that the dental practice could be held directly liable under the TCPA, so long as the advertisement was sent on behalf of the dental practice. The Eleventh Circuit agreed, holding that a “person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, many be held liable directly under the TCPA’s ban on the sending of junk faxes.”

In reversing summary judgment for the dental practice, the Eleventh Circuit noted that the plaintiff had presented sufficient evidence to demonstrate that the fax advertisements were sent on behalf of the dental practice. First, there was evidence that the dental practice hired a marketing manager. Second, there was sufficient evidence that the marketing manager hired the advertising company to transmit the unsolicited faxes. Third, the advertising company successfully transmitted over 7,000 unsolicited faxes promoting the dental practice.

Marketing and advertising is a necessary evil for businesses, and the Eleventh Circuit’s reversal in Palm Beach should serve as a warning to businesses about how they market and advertise their services. Although this case has fairly limited application, businesses should remember that just because you don’t press “Send” doesn’t mean you aren’t liable.

Matthew A. Barley

BarleyMatt