In Palm Beach Golf-Center Boca, Inc. v. John G. Sarris, D.D.S., P.A., No. 13-14013 (11th Cir. Oct. 30, 2014), the Eleventh Circuit Court of Appeals reversed the Southern District of Florida’s entry of summary judgment in the defendant’s favor in a putative class action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
The TCPA prohibits, inter alia, a person from sending an unsolicited advertisement via fax machine. The defendant, John G. Sarris, D.D.S., P.A. dental practice (“Sarris”), hired a marketing manager to market the practice. This marketing manager was solicited by another third-party, Business to Business Solutions (“B2B”), which offered to send out mass fax advertisements. B2B ultimately sent over 7,000 successful fax transmission, including a transmission to the plaintiff.
The plaintiff, however, was identified through B2B’s transmission records and no employee of the plaintiff could recall every seeing the advertisement. The District Court held, inter alia, that the plaintiff lacked Article III standing to pursue its claim because, as the fax was never printed or seen by the plaintiff, it had incurred no actual injury. The Eleventh Circuit reversed, holding that the TCPA creates a cognizable statutory right to pursue a claim even where there was “no judicially cognizable injury” in the absence of the statute. Because there was no dispute that B2B successfully transmitted the fax to the plaintiff, the plaintiff had standing to pursue its claim regardless of whether any employee ever actually saw the fax transmission.
In granting summary judgment in favor of Sarris, the District Court also held that the plaintiff could recover under the TCPA only a theory of vicarious liability, relying on the Federal Communications Commission’s 2013 decision In Re DISH Network, LLC, 28 FCC Rcd. 6574 (the “2013 FCC Opinion”). In the 2013 FCC Opinion, the FCC held that a seller under the TCPA could only be vicariously liable, and not directly liable, for calls made in violation of Section 227(b) and (c)(5). The District Court held that the plaintiff had failed to plead any theory of vicarious liability (whether actual authority, apparent authority, or ratification), and that even if vicarious liability had been pled, none of those theories could be supported by the facts on the record.
The Eleventh Circuit again reversed the District Court’s determination, holding that the 2013 FCC Opinion “dealt only with voice calls and text messages, and did not construe the TCPA provision related to the sending of faxes.” Under the TCPA provision governing faxes, Sarris could be held directly liable “so long as the advertisement was sent on its behalf.” Because the plaintiff was not required to plead (or prove) that Sarris is vicariously liable under the TCPA, the Eleventh Circuit reversed the District Court’s grant of summary judgment in favor of Sarris.
A copy of the Eleventh Circuit’s decision is available here.
