• Eleventh Circuit Expands TCPA Definition of “Sender” Beyond Usual Understanding of That Term
  • November 28, 2014 | Author: Scott A. Shaffer
  • Law Firm: Olshan Frome Wolosky LLP - New York Office
  • Court rules that a person does not have to actually send a fax in order to be considered the legal sender.

    In Palm Beach Golf Center v. Sarris, decided on October 30, 2014, the Eleventh Circuit Court of Appeals expanded the definition of the word “sender” beyond the usual understanding of what it means to send a fax. As a result of this ruling, more advertisers will be exposed to liability under the Telephone Consumer Protection Act (TCPA).

    Dr. John Sarris, a Florida dentist, hired a company called Business To Business Solutions to advertise his practice. For $420, Business To Business sent out over 7,000 faxed advertisements for Sarris. One of the faxes went to Palm Beach Golf Center, although no employees of the golf center could remember seeing the fax. The golf center was contacted by a plaintiffs’ class-action firm, sent a box full of faxes to the attorneys, and eventually agreed to file a TCPA class action against the dentist. The law firm had learned about the golf center through records it obtained in another lawsuit.

    On October 22, 2013, the golf center’s lawsuit was dismissed in the Southern District of Florida on a summary judgment motion. But on appeal, the Eleventh Circuit reversed.

    Under certain circumstances, a person or company can be held vicariously liable under the TCPA for someone else’s actions. The circumstances for vicarious liability depend on how much direct control the dentist (principal) exercises over the faxer (agent). The district court ruled these circumstances were not present and therefore Dr. Sarris was not responsible for the acts of Business To Business Solutions.

    The Eleventh Circuit did not disturb that finding, but instead decided that Dr. Sarris was the “sender” of the fax in the legal sense, even though he did not actually send it. This ruling was based on an opinion issued by the Federal Communications Commission (FCC) in 1995.

    Unquestionably, Dr. Sarris was not the “sender” of the fax in the way normal people use that word. He did not dial the number, use his own equipment, and the fax was not sent from his office. Business To Business Solutions actually sent the facsimile from their own facilities and equipment.

    The portion of the ruling that most people will find controversial is the one in which the Eleventh Circuit says the word “send” is unclear. The court wrote: “Having found the term ‘to send’ undefined by the TCPA and that the term is ambiguous, our inquiry turns on the question of whether the FCC's [1995] interpretation of who qualifies as the ‘sender’ of an unsolicited fax advertisement, as used in the statute, is permissible. We find that it is.”

    Thus, even though the hapless dentist did not actually send the fax in question, he will now be treated as if he did, and could be held responsible for a $500 penalty for each of 7,000+ faxes.

    If there is any good news at all for businesses that advertise, it is that the Eleventh Circuit limited its ruling to unsolicited facsimiles and stated that the ruling does not apply to telephone calls or text messages. In that respect, the Eleventh Circuit wrote: “The TCPA ban on telephone calls makes it unlawful ‘to initiate’ certain phone calls made to any residential line without the prior consent of the called party... The statute's provision pertaining to junk faxes, on the other hand, makes it unlawful ‘to send’, to a telephone facsimile machine, an unsolicited advertisement.” However, under the constantly evolving judicial interpretations of the TCPA’s terms, it would not be shocking to see the Eleventh Circuit’s rationale expanded by a different judge to cases involving auto-dialed calls or text messages.