Some of our
clients have been sued (or threatened with lawsuits) under a 1991 federal law,
the Telephone Consumer Protection Act (TCPA). One of the provisions of
that law makes it “unlawful for any person within the United States … to use any
telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine." The statute further defines
"unsolicited advertisement" as "any material advertising the commercial
availability or quality of any property, goods, or services which is transmitted
to any person without that person’s prior express invitation or permission.”
In short, any unsolicited
fax sent for the purpose of advertising the products or services of any business
within the U.S. subjects the sender to civil liability under the TCPA. Moreover,
TCPA lawsuits can be filed in state court:
-
by any business or
individual who receives an unsolicited fax advertisement,
-
by the state attorney
general, and, potentially,
-
by large groups of
class action plaintiffs.
Costly damages
Most troubling, however, are the damages that plaintiffs can recover in such
lawsuits, regardless of whether or not the fax sender intended to violate the
TCPA or even knew of its existence. Thus, in addition to issuing an injunction,
the court may award the plaintiff his or her “actual monetary loss from such a
violation, or … $500 in damages for each such violation, whichever is greater.”
Because fax
advertisements are often sent to hundreds and even thousands of recipients, the
potential damages under the TCPA can be enormous, given that a minimum of $500
can be assessed for each fax. Furthermore, if the plaintiff can prove that the
defendant “willfully or knowingly” violated the TCPA, the court may triple the
amount of damages otherwise recoverable.
The recent spate of TCPA
lawsuits in Phoenix appears to be attributable to a handful of local attorneys
who must view such litigation as a promising source of income. We therefore want
to advise you of this situation and urge you to be wary of any company that
offers to provide you with mass faxing services to large lists of businesses or
other potential customers.
Ignorance no defense
The TCPA has been frequently attacked on constitutional and other grounds, but
we are unaware of any successful challenges.
In addition, as mentioned
above, ignorance of the law is not a defense to any TCPA lawsuit, nor can a
defendant escape liability by including a telephone number that the recipient of
his or her unsolicited fax can call to indicate that they do not wish to receive
any further faxes. The only safe course of action, therefore, is not to send—or
allow others to send—any unsolicited faxes as a method of advertising your
business. ■
These materials
are designed to provide general information prepared by professionals in regard
to the subject matter covered. It is provided with the understanding that the
author is not engaged in rendering legal, accounting, or other professional
service. Although prepared by professionals, these materials should not be
utilized as a substitute for professional service in specific situations. If
legal advice or other expert assistance is required, the service of a
professional should be sought.
