By: Matt Foree
The Telephone Consumer Protection Act (“TCPA”) has been criticized for its severe penalties and its failure to apply common sense. As discussed in this blog previously, members of Congress submitted correspondence to the Chairman of the Federal Communications Commission (“FCC”) urging the FCC to revise the TCPA., which they describe as an “outdated federal law.
Nevertheless, the U.S. Court of Appeals for the Eleventh Circuit has recently expanded the scope of direct liability for unsolicited facsimiles under the TCPA. In Palm Beach Golf Center-Boca, Inc. v. John D. Sarris, D.D.S., P.A., John Sarris, the owner of the defendant dental practice, hired a marketing manager and gave him “free rein” to market the practice. The marketing manager was solicited by a third party that offered to send out mass fax advertisements. The third party sent over 7,000 successful fax transmissions (at a cost of $420.00). The District Court held that the plaintiff could only prevail under a theory of vicarious liability, i.e., that defendant was liable, if at all, only for the acts of its marketing manager, if it was established that he was an employee acting within the scope of his employment. The court relied on a 2013 FCC Opinion, in which the FCC held that a seller under the TCPA could only be vicariously liable, and not directly liable, for calls made in violation of specific sections of the TCPA. The District Court held that, even if the plaintiff had specifically pled vicarious liability, which it had not, the facts on record did not support such liability.
On appeal, the Eleventh Circuit overturned the District Court, determining that the 2013 FCC Opinion concerned only voice calls and text messages, and “did not construe the TCPA provision related to the sending of faxes.” The court also determined that, under the provision of the TCPA governing faxes, the defendant could be directly liable “so long as the advertisement was sent on its behalf.” Therefore, the court held that the record contained sufficient evidence for a jury to find that the fax sent to the plaintiff was sent “on behalf of” the defendant.
This recent decision should be a reminder for management to be aware of the potential for liability under the TCPA, even when using third parties for advertising.