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The “Strangest Statute” Chief Justice Roberts Has Seen: Uncertainties of Litigating TCPA “Junk Fax” Class Actions

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At oral argument in 2011, Chief Justice Roberts described the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. §227, as “the strangest statute I’ve ever seen.”1 To illustrate the implications of this “strangest” of statutes, consider the following scenario: Fax Blaster, Inc., a fly-by-night entity that specializes in sending fax advertisements on a mass scale, approaches a sales associate for Large, Co. The associate hires Fax Blaster, Inc. to send advertisements to a list of 30,000 numbers in the blaster’s database. A recipient of the transmission — who does not even recall receiving this particular fax — is contacted by a law firm and asked to serve as the representative in a putative class action TCPA lawsuit against Large, Co. The court holds that Large, Co. is directly liable under the act because its “goods or services” were being “advertised or promoted,” and judgment is entered for the minimum statutory damages — $15,000,000.

If any company with a sales or marketing force is not yet concerned with TCPA compliance and liability issues, it probably should be.

Prompted by “an increasing number of consumer complaints” to the Federal Communications Commission (FCC) about the use of automated telemarketing equipment, Congress passed the TCPA to place restrictions on the use of automatic dialing systems and the transmission of unsolicited facsimiles.2 In the “junk fax” context, the TCPA generally prohibits the sending of unsolicited advertisements to a fax machine,3  nd contains a private right of action under which a recipient may obtain $500 per fax in statutory damages (or up to $1,500 per fax, in the court’s discretion, if the violation was willful or knowing).4

The act’s sponsor, Senator Ernest Hollings, contemplated that individuals would bring TCPA claims pro se in small claims court,5 but in the years following the passage of the act, large-scale TCPA class action litigation has become a booming “cottage industry.”6 According to some estimates, more than 2,300 TCPA lawsuits were filed in 2014 (compared to 1,100 in 2012, 350 in 2010, and 16 in 2008), and the number is expected to continue escalating for the foreseeable future.7

The rise of large-scale “junk fax” litigation has been fueled, in part, by the proliferation of technologies that allow for millions of faxes to be sent each day through computerized fax servers.8 These technological innovations, coupled with the absence of a statutory damages cap, have created a landscape in which a fax blaster (an entity that combines computerized fax technologies with databases of fax numbers) can expose a defendant to millions of dollars of liability in a matter of hours. In such circumstances, the threat of crippling liability creates significant pressure on defendants to settle. Consequently, 2014 was the high-water mark for TCPA settlements. In August 2014, a financial institution and three collection agencies agreed to the largest settlement in the history of the statute — a $75.5 million fund to end litigation concerning calls made from an automatic dialing system9; shattering the previous record of $32 million.10 In the “junk fax” space, a distributor of maintenance products agreed in November to settle class action litigation for $40 million.11

The issue of defendants’ unwillingness to bear the risk, even if it is only a small possibility, of an adverse judgment in the face of enormous damage exposure is not unique to the TCPA context.12 But TCPA lawsuits give rise to additional uncertainty because the law surrounding many fundamental aspects of the statute is unsettled. This lack of clarity makes it difficult to accurately evaluate the strength of a defendant’s litigation position, which in turn creates added pressure on the defendant to settle the action.

This article discusses three areas of uncertainty in the TCPA junk fax context. The first pertains to the fundamental issue of who may be held directly liable for sending a violative fax. While some courts conclude that direct liability attaches only to the entity or individual that actually sent the transmission, these decisions are being overshadowed by opinions concluding that an entity is directly liable under the act whenever its “goods or services are advertised or promoted” in the transmission, which raises a set of additional questions regarding how that concept might be interpreted in particular factual situations. The second area is the issue of whether named plaintiffs have Article III or statutory standing to bring a TCPA action in the common situation in which the plaintiff does not even recall receiving the fax (and lacks any knowledge of its contents). In such a scenario, how can the plaintiff demonstrate that it has sustained an injury sufficient to establish standing? To the extent standing is lacking under those circumstances, class certification may be inappropriate because determining which putative class members are within the class ( i.e., which have knowledge of receiving the transmission or own the fax machine) could create extraordinary administrative problems. Finally, this article explores cases that address whether the act’s tacit allowance for unlimited damages can withstand Constitutional scrutiny.

The Uncertain Standard for Direct Liability Under the TCPA
The TCPA provides that it is unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”13 Given that establishing liability under the act is a relatively straightforward matter — some courts have called the TCPA “essentially a strict liability statute”14; a critical issue for purposes of establishing direct liability is determining the sender of the transmission. The issue is particularly significant because in many large junk fax cases, the transmissions were sent not by the named defendant, but by outside fax blasters that specialize in sending out unsolicited faxes on a mass scale.

The FCC, which is the agency charged with administering the TCPA, has promulgated a regulation defining the “sender” of a junk fax as “the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement.”15 A concept underlying the FCC regulation is that entities should not be able to escape liability for TCPA violations merely because they did not physically “hit send.”16 But the FCC’s broad interpretation could be read to lead to what courts have described as absurd liability scenarios. For example, under this FCC definition of “sender,” a company is arguably directly liable under the TCPA for violative faxes — even if the faxes were not sent on the company’s behalf — simply because the faxes advertised or promoted its goods or services. If an aggrieved customer wanted to expose a company to $1,000,000 in TCPA liability, it could hire a fax blaster to send out 2,000 faxes in an afternoon. In Cin-Q Auto., Inc. v. Buccaneers Ltd. P’ship, No. 13-CV-01592, 2014 WL 7224943 (M.D. Fla. Dec. 17, 2014), the Middle District of Florida highlights this “sabotage liability” problem by imagining a “rabid Tampa Bay Buccaneers fan” rendering the organization per se liable by sending season ticket sales promotions by fax.17 In light of this issue, some courts have been willing to treat the two elements of the FCC’s “sender” definition as conjunctive rather than disjunctive, requiring that the transmission was also sent “on behalf” of the defendant.18

Another bizarre aspect of the FCC’s expansive definition is that the third-party fax blasters, some of whom send faxes by the millions, are rarely sued. Courts have described one infamous blaster as “a modern-day ‘Typhoid Mary,’”19 escaping personal liability but leaving a trail of massive exposure to her customers in her wake. One reason why the fax blasters themselves are rarely sued is because the standard to hold liable the individual who actually transmitted the fax, paradoxically, is arguably more difficult to satisfy than the standard to hold liable the entity whose “goods or services” are being “advertised or promoted.” Under the FCC regulation, a fax blaster may be jointly and severally liable only “if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.”20 Yet another, perhaps cynical, explanation for why fax blasters escape liability is because attorneys who repeatedly bring TCPA class action lawsuits have no incentive to “kill the Golden Goose” by suing the fax blasters. Many fax blasters aggressively market their services to sales representatives, and if the blasters were shut down, presumably the pool of potential TCPA defendants with enticingly large exposure would decrease.

The FCC interpretation of the sender of the fax transmissions has not conclusively resolved the issue. Part of the continued ambiguity stems from a 2012 declaratory ruling ( In re Joint Petition filed by Dish Network LLC, 28 FCC Rcd. 6574, 6574 (2012)), in which the FCC addressed three petitions that sought clarification as to whether the provisions of the TCPA created direct liability in the call context when the calls were placed by third-party telemarketers.21 In response to the FCC’s request for comment, some commentators argued that because the TCPA’s definition of “initiate” (the analog to “send” in the fax context) encompasses a person on whose behalf a communication is made, common law agency principles should be irrelevant to the TCPA liability framework. But the FCC determined that such a reading is “too broad” because “the mere fact that a company produces and sells a product does not mean that it initiates telephone calls….”22 The FCC ultimately concluded that an entity “‘initiates’ a telephone call when it takes the steps necessary to physically place a telephone call, ” 23 but that it may be held vicariously liable under federal common law agency principles.24 This interpretation would appear to be consistent with the direct/vicarious liability framework in non-TCPA contexts — i.e., the wrongdoer is directly liable for its own conduct, and the wrongdoer’s principal may be vicariously liable only under certain circumstances.

In the aftermath of Dish Network, a number of courts applied the FCC’s reasoning pertaining to telemarketing calls in that proceeding to the fax context. For example, in Palm Beach Golf Center-Boca, Inc. v. Sarris, 981 F. Supp. 2d 1239, 1248 n.13 (S.D. Fla. 2013), the owner of a dental practice hired an independent contractor to market its services, and the independent contractor then hired an outside fax blaster to send out fax transmissions. The defendant was not even aware that the fax transmissions were being sent. Relying extensively on Dish Network and noting that, under the TCPA, the definitions of a “seller” (who “initiates” a telemarketing call) and a “sender” (who “sends” a fax transmission) are “substantially similar,” the Southern District of Florida concluded that because the dental practice had not physically sent the transmissions, it could not be held directly liable. Courts in other judicial districts have echoed this reasoning.25 Indeed, in Avio, Inc. v. Alfoccino, Inc., 18 F. Supp. 3d 882, 893 (E.D. Mich. 2014), the Eastern District of Michigan went so far as to characterize the “unsettled” scope of direct TCPA liability in the junk fax context as a thing of the past.

Unfortunately for TCPA litigants, the Avio court’s pronouncement was premature. With the Sarris case on appeal, the 11th Circuit requested the FCC’s position on “whether the TCPA and its accompanying regulations allow a plaintiff to recover damages from a defendant who sent no facsimile to the plaintiff, but whose independent contractor did,” noting that Dish Network addressed telemarketing calls rather than facsimiles.26 The FCC responded:

The DISH Network ruling did not address or alter the treatment of facsimile transmissions under the TCPA or the [c]ommission’s implementing regulations. Under the terms of the statute and regulations, the recipient of an unsolicited facsimile advertisement may recover damages from a defendant that does not itself transmit the offending facsimile, if the defendant has hired an independent contractor to transmit facsimiles advertising the defendant’s goods or services. Such liability does not depend upon the application of federal common law vicarious liability principles.27

Citing 47 C.F.R. §64.1200(f)(10), the FCC stated that under the definition of “sender,” direct liability attaches “to the entity (defined as the ‘sender’) whose goods or services are being promoted, and not generally to the entity that physically transmits the facsimile.”28

Ultimately, the 11th Circuit agreed with the position articulated in the FCC’s amicus letter, holding that the district court’s reliance on Dish Network was misplaced because “ Dish Network did not address the TCPA’s junk-fax-ban provision.”29 (Shortly thereafter, the 11th Circuit vacated and superseded that opinion on reconsideration,30 but the later decision is substantively similar to the prior opinion for purposes of this article.) The 11th Circuit remanded the case to the Southern District of Florida, finding that “there is sufficient record evidence to support having a jury decide whether the fax was sent on behalf of [d]efendant,” in which case direct liability would attach.31

It remains to be seen to what extent other judicial circuits adopt the position of the FCC and the 11th Circuit on the issue of direct liability. But even within the 11th Circuit, the parameters of what constitutes “on behalf of” liability remain unclear. In Cin-Q Automobiles, Inc., one of the first cases interpreting the 11th Circuit decision, the Middle District of Florida concluded that the direct liability standard “is a standard lying somewhere in the middle — more forgiving than a blanket application of per se liability but somewhat more stringent than vicarious liability through common law agency,” reasoning that “ Sarris has, in essence, allowed for direct liability through a totality test based loosely on agency principles, aimed at establishing the origin of the offending behavior.”32 Circumstances to be considered in this “totality test” include the degree of input and control the defendant had over the context of the faxes, the content itself, the scope of control between the parties, and the existence of measures taken to ensure compliance with the TCPA.33 The Cin-Q Automobiles, Inc., test offers an approach that avoids the harshness and absurdity of de facto strict liability to any company whose “goods or services” have been advertised in faxes that have run afoul of the TCPA, but its highly fact-specific nature may not resolve the uncertainty in many junk fax litigation environments.

The Uncertain Issue of Standing
A putative class representative, just like any other litigant, must have standing to sue. The issue of standing in both the statutory and Article III contexts is particularly significant in TCPA class action lawsuits because it impacts not only the named plaintiff’s ability to bring the lawsuit on behalf of the putative class, it also impacts the class certification analysis. Under certain standing constructions, such as when only the owner of the fax machine has statutory standing, courts could reasonably conclude that class certification would be inherently inappropriate because of the onerous administrative hurdles involved in determining whether each individual class member has satisfied the standing requirement.

Article III standing requires, among other things, that a plaintiff demonstrate “a distinct and palpable injury to himself.”34 Some courts have concluded that when a named plaintiff has no knowledge of receiving the transmission, which is often the case, Article III standing is lacking because the plaintiff cannot demonstrate an “injury in fact.”35 Moreover, one court found it “difficult to conceive” how a plaintiff’s privacy rights can be invaded “[i]f a plaintiff does not see, know about, or otherwise become aware of an unsolicited fax advertisement.”36

But these opinions generally have not withstood recent appellate scrutity,37 and there is a line of cases articulating a different perspective on standing. In one case in which the named plaintiff had no recollection of the fax it allegedly received, the District of New Jersey reasoned that because the TCPA prohibits the sending of unsolicited faxes, there is no need for the plaintiff to “show specific harms that a plaintiff can later identify.”38 This reasoning has been criticized by at least one court for conflating Article III and statutory standing, because Article III sets a “hard floor” that requires the plaintiff to suffer some injury in fact.39 However, the 11th and Sixth circuits emphasized that even if the plaintiff did not print (or see) the fax transmission, the plaintiff does suffer an injury if it can be established that the recipient’s facsimile line was “occupied” for a period of time.40

Still, other courts have accepted arguments attacking statutory standing, reasoning that only the owner of the facsimile machine that received the transmission has standing. The starting point of this unsettled issue of law is that the TCPA problematically “does not specify who may sue for damages after an unauthorized fax advertisement has been unlawfully sent to a telephone facsimile machine.”41 Given this absence of express language conferring statutory standing, there is a possibility that multiple plaintiffs may sue for a single fax transmission — e.g., “all individuals at a home or employed by a corporate entity, or any person who happens to ‘intercept’ a fax advertisement by picking it up.”42

After reviewing the legislative history of the TCPA, the one district court concluded that the injury the statute “was intended to address is the cost of the paper and ink incurred by the owner of the fax machine and the fax machine owner’s loss of the use of the machine,” and, therefore, only the owner of the machine has standing to sue.43 In general, this principle has not gained significant traction, and at least two federal courts of appeals have rejected it. Judge Posner reasoned that the notion that only owners should have standing given that the TCPA’s legislative history expressed concern over loss on ink and paper is “erroneous on its own terms” because lessees of fax machines often incur these costs, and it would be “arbitrary” to limit standing to owners of fax machines, particularly because the TCPA does not mention the term.44 Similarly, the Sixth Circuit concluded that there is no reason for courts to look to the statutory history of the TCPA, and that in any event the “loss of ink and paper” reading is too narrow because Congress was concerned with other costs associated with junk faxing, such as time costs on the recipient and the fact that the recipients lines are “tied up.”45

The issue of standing is significant in the TCPA context not only because it is relevant to “knocking off” particular named plaintiffs; it has implications that impact the inherent certifiability of a TCPA class. Were the court to acknowledge, for example, that Article III standing requires a plaintiff to have knowledge of receipt of the facsimile transmission, a logical extension would be that TCPA “junk fax” class actions could not be certified. One of the implied prerequisites of class certification is ascertainability — i.e., the ability to determine which entities and individuals are in the class.46 For this reason, one federal court observed that although a TCPA class definition (“All persons who were sent one or more of the faxes….”) appears ascertainable “[a]t first blush” because “it might seem obvious what it means to be a person ‘who was sent’ a specific fax on a given date,” the putative class was not ascertainable or otherwise in accordance with the Rule 23 requirements.47

To satisfy the ascertainability requirement, a court must find that the class definition is “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.”48 If a class member must have knowledge of actual receipt of the fax (or must be the “owner” of the facsimile machine that received the transmission), a class definition including “persons who were sent” unsolicited faxes is unclear and presents insurmountable administrative hurdles because it would require individual determinations for each prospective class member.49 And it would be unfeasible to determine if each of the — sometimes millions of — class members had knowledge of receiving the fax.

The dueling opinions concerning the issue of standing contribute to the significant uncertainty in the TCPA junk fax litigation space. The most promising cases from the TCPA defense perspective appeared to be those questioning the existence of Article III standing for certain TCPA plaintiffs, but the 11th Circuit in Sarris — and other courts noted above — have undercut many such arguments. Still promising is the Supreme Court’s recent acceptance of certiorari in Spokeo, Inc. v. Robins, No. 13-1339 (U.S.), where the Court is expected to address the issue of whether Congress may confer Article III standing on a plaintiff who has suffered no concrete harm. Although arising in a different statutory context, the impact on TCPA jurisdiction could be significant.

The best approach to minimize the TCPA standing uncertainty would be for Congress or the FCC to clarify who may bring TCPA lawsuits. Appropriate congressional or administrative action could obviate the need for courts to consider the “hard floor” of Article III and provide greater uniformity in the caselaw, which would benefit litigants on both sides of TCPA cases.

The Uncertain Constitutionality of Uncapped Statutory Damages
When the TCPA was enacted in the early 1990s, the cost of receiving a fax was roughly 10 to 15 cents per page transmitted.50 But traditional fax machines have become relatively rare, replaced to a large extent by computer fax servers that allow recipients to view the transmission on a computer (just as the recipient would view an email) and simply delete the “fax” without incurring the loss of ink, toner, or paper, and without having tied up the recipient’s telephone line for any period of time.51 Therefore, for many individuals, the actual economic cost of receiving a junk fax is virtually zero.52 Even for those individuals with traditional fax machines, advances in technology have reduced the cost of receiving a fax to approximately two cents.53

Despite the dramatic reduction in the monetary cost of receiving a facsimile, the damages provision of the TCPA has remained unchanged. The act provides for statutory damages that allow the claimant to recover, as an alternative to actual monetary loss, $500 per transmission. Given that fax blasters can send hundreds of thousands of faxes each day through computerized fax servers, a defendant’s aggregate damage exposure can escalate remarkably quickly. For example, a blaster who sends just 1,500 faxes per day for 30 days would expose a company whose “goods or services” are being “advertised or promoted” to $22.5 million in statutory damages (or up to $67.5 million, in the court’s discretion, for willful or knowing conduct).

Even setting aside the issue of whether the act has kept pace with the proliferation of new technologies, the TCPA is somewhat unique among consumer protection statutes in that it provides for uncapped recovery. contrast, the Fair Debt Collection Practices Act, the Truth in Lending Act, and the Electronic Fund Transfers Act establish the maximum statutory damages for a class as the lesser of a fixed dollar amount or 1 percent of the defendant’s net worth, and provide that a court may reduce the statutory recovery.54 One explanation for the conspicuous absence of a statutory damages cap in the TCPA, provided by an industry expert, is simply that “Congress never really considered the effect class actions could have on the TCPA’s statutory damages provisions.”55 After all, the principal purpose of statutory damages is to make small claims feasible for individuals to pursue.56 The explanation is also consistent with the legislative history of the TCPA, which appears to contemplate that private claims would be brought pro se in small claims court57 and reflects a desire to set a damages amount that is “fair to both the consumer and the telemarketer.”58 Congress certainly did not anticipate a meteoric rise of large-scale junk fax class action litigation,59  which has created a liability framework in which the level of damages is grossly disproportionate to the alleged wrong.

Although the maximum exposure to TCPA defendants is fixed by statute and uncapped, the issue of whether extraordinary damages in this context can withstand constitutional scrutiny remains unsettled. As courts generally find the issue inappropriate for adjudication until the plaintiff and class have prevailed at trial,60 the constitutionality of uncapped TCPA damages has rarely been tested. This has injected considerable uncertainly into the defendant’s settlement and exposure analysis — faced with statutory exposure of hundreds of millions of dollars and little clarity as to whether a court would uphold such an award, what is a fair settlement value to a TCPA defendant? A review of the decisions addressing the topic provides little comfort because some courts have endorsed “full” statutory damages, but others have reduced the statutory damages or expressed skepticism regarding their constitutionality.

Certainly one of the most significant victories for TCPA plaintiffs was provided by the Georgia Supreme Court in A Fast Sign Co. v. American Home Services., Inc., 734 S.E.2d 31, 32 (Ga. 2012), in which the court reinstated a $459 million jury verdict against the defendant for sending 306,000 unsolicited advertisements to various fax machines in the metropolitan Atlanta area. The court found that the defendant’s violations were willful and knowing since the defendant had contracted with a third-party communications firm to send 318,000 advertisements, and, therefore, imposed the maximum statutory damages permitted under the act — $1,500 per fax.61 In contrast, in Texas v. American Blastfax, Inc., 164 F. Supp. 2d 892, 900, n.8 (W.D. Tex. 2001), the Western District of Texas refused to award $2.34 billion in damages for the defendant’s transmission of more than 4.5 million faxes over a five-month period. Noting that the amount “would be inequitable and unreasonable,” the court interpreted the TCPA damages provision to mean “up to $500 per violation,” 62 and adjusted the damages award to seven cents per page.

Other courts have also expressed frustration at the TCPA’s rigid damages requirement and hesitation in recognizing a plaintiff’s entitlement to the full statutory damages provided by the act. For instance, in Maryland v. Universal Elections, Inc., 862 F. Supp. 2d 457, 466 (D. Md. 2012), the District of Maryland rejected the state’s request for $10 million in damages for calls to 112,000 recipients. The court reduced the damages award to $1 million (one-tenth of the state’s request), finding that “a $10 million penalty is disproportionate to the size of the company and the defendant’s presumptive ability to pay.”63

The legal basis for reducing the damages award in Universal Elections, Inc., was the Eighth Amendment’s prohibition against the imposition of excessive fines, but this restriction is generally limited to actions brought by the state.64 Nevertheless, courts have paved another constitutional avenue to avoid excessive and punitive fines imposed — the due process rights afforded under the Fifth Amendment. Although not directly reaching the issue, several courts have reasoned that if a TCPA damages award is “so excessive as to violate due process,” the court would be empowered to reduce it.65

In sum, certain courts are open to limiting extraordinary aggregate damages awards, but absent legislative adjustments to the act to keep it in tune with the original intent, TCPA defendants have no certainty regarding whether the statutory exposure — $500/$1,500 multiplied by the number of transmissions — will be enforced.

The standard for direct liability, the contours of standing, and the constitutionality of damages are three important areas of uncertainty in TCPA litigation, but there are many others. When Chief Justice Roberts described the statute as the “strangest” he had seen — and Justice Kagan later remarked that “all nine Justices agree [the TCPA is] odd”66 & #x2014; the specific issue before the Court was whether the federal district courts even had federal-question jurisdiction over private lawsuits brought under the act. One explanation for this unusual lack of clarity is that some courts have acted affirmatively to rectify perceived problems and ambiguities that have been exposed or magnified in the quarter century following the passage of the TCPA, whereas other courts have strictly applied the plain language of the act or the accompanying regulations. Until Congress (or the FCC) acts to remedy the many issues in this “strangest” of statutes, the unsettled nature of the TCPA is almost certain to persist. In the meantime, many businesses will be forced to cope with the uncertainty.

1 Transcript of Oral Argument at 51, Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (No. 10-1195).

2 S. Rep. No. 102-178 at *1 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1969.

3 47 U.S.C. §227(b)(1)(C) (2012).

4 47 U.S.C. §227(b)(3).

5 137 Cong. Rec. 30,821 (1991); Freedman v. Advanced Wireless Commc’ns, Inc., No. SOM-L-611-02, 2005 WL 2122304 at *2 (N.J. Sup. Ct. Law Div. June 24, 2005).

6 Yuri R. Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. 70, 94-97 (2011).

7 Debt Collection Litigation & CFPB Complaint Statistics, December 2014 & Year in Review, WebRecon LLC, available at ; Allison Grande, TCPA Class Action Surge Shows No Signs of Abating,
Law360 (May 24, 2013), available at tcpa-class-action-surge-shows-no-signs-of-abating.

8 Covington & Burling v. Int’l Mktg. & Research, Inc., No. CIV.A. 01-0004360, 2003 WL 21384825 at *3 (D.C. Super. Ct. Apr. 17, 2004).

9 Patrick Lunsford, Capital One and Three ARM Firms Agree to $75 Million TCPA Settlement,, July 31, 2014,

10 Dena Aubin, Bank of America in Record Settlement Over “Robocall” Complaints, Reuters, Oct. 1, 2013, available at

11 Richard Webner, Jacksonville Company to Pay $40 Million to Settle Class Action Suit Over Unsolicited Ads, The Florida Times-Union, Nov. 18, 2014, available at

12 Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014).

13 47 U.S.C. §227(b)(1)(C) (emphasis added).

14 See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011) (citing Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008) (“The TCPA is essentially a strict liability statute which imposes liability for erroneous unsolicited faxes.”).

15 47 C.F.R. 64.1200(f)(10) (emphasis added). See also In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 FCC Rcd 3787, 3808 (2006) (“We take this opportunity to emphasize that under the [c]ommission’s interpretation of the facsimile advertising rules, the sender is the person or entity on whose behalf the advertisement is sent.”); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 10 FCC Rcd 12391, 12407-08 (1995) (“[E]ntity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements.”).

16 See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 393 (Tex. App. 2004); Hooters of Augusta, Inc. v. Nicholson, 537 S.E.2d 468, 472 (Ga. Ct. App. 2000); Worsham v. Nationwide Ins. Co., 772 A.2d 868, 878 (Md. Ct. Spec. App. 2001).

17 Cin-Q Auto, 2014 WL 7224943 at *4.

18 Bais Yaakov v. Varitronics, LLC, No. 14-5008, 2015 WL 1529279 at *4 (D. Minn. Apr. 3, 2015).

19 Avio, Inc. v. Alfoccino, Inc., 18 F. Supp. 3d 882, 884 (E.D. Mich. 2014), rev’d 792 F.3d 627 (6th Cir. 2015).

20 47 C.F.R. §64.1200(a)(4)(vii).

21 In re Joint Petition filed by Dish Network LLC, 28 FCC Rcd. 6574, 6574 (2012).

22 Id. at 6583.

23 Id. (emphasis added).

24 Id. at 6584.

25 Savanna Grp., Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 4734004 at *5 (N.D. Ill. Sept. 3, 2013); Imhoff Inv., LLC v. SamMichaels, Inc., No. 10-10996, 2014 WL 172234 at *6 (E.D. Mich. Jan. 15, 2014).

26 Letter from Laurence N. Bourne et al., Counsel for FCC, to John Ley, 11th Cir. Clerk of Court, 2014 WL 3734105 at *1 (July 17, 2014).

27 Id.

28 Id. at *2.

29 Palm Beach Golf Center-Boca, Inc. v. Sarris, 771 F.3d 1274, 1285 (11th Cir. 2014).

30 Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015).

31 Id. at 1257.

32 Buccaneers Ltd. P’ship, No. 2014 WL 7224943 at *6-7.

33 Id.

34 Warth v. Seldin, 422 U.S. 490, 501 (1975).

35 Avio, Inc., 18 F. Supp. 3d at 889-92.

36 Id. at 890 (quoting Sarris, 981 F. Supp. at 1256).

37 Imhoff Inv. LLC v. Alfoccino, Inc. , 792 F.3d 627 (6th Cir. 2005); Sarris, 781 F.3d 1245 (11th Cir. 2015).

38 City Select Auto Sales, Inc. v. David Randall Assocs., Inc., 296 F.R.D. 299, 304, 309-10 (D.N.J. 2013).

39 Avio, Inc., 18 F. Supp. 3d at 892.

40 Sarris, 781 F.3d at 1252; Imhoff, 792 F.3d at 633.

41 Compressor Eng’g Corp. v. Mfgs. Fin. Corp., 292 F.R.D. 433, 447 (E.D. Mich. 2013).

42 Critchfield Phys. Therapy v. Taranto Grp., Inc., 263 P.3d 767, 784 (Kan. 2011).

43 Compressor Eng’g Corp., 292 F.R.D. at 448-49.

44 Arnold Chapman & Paldo Sign & Display Co. v. Wagener, 747 F.3d 489, 491 (7th Cir. 2014).

45 Am. Copper & Brass, Inc. v. Lake City Indus. Prods., Inc., 757 F.3d 540, 544-45 (6th Cir. 2014).

46 Compressor Eng’g, 292 F.R.D. at 447.

47 Id. at 447-48.

48 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1760 (3d ed. 2014).

49 Compressor Eng’g, 292 F.R.D. at 450.

50 Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. at 84 (2011).

51 Id. at 84-85.

52 Id.

53 Id. at 84.

54 15 U.S.C. §1692k(a)(2)(B) (2012); 15 U.S.C. §1640(a)(2)(B) (2012); 15 U.S.C. §1693m(a)(2)(b) (2012).

55 Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. at 90 (2011).

56 Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 Mo. L. Rev. 103, 107-08 (2009).

57 137 Cong. Rec. 30,821 (1991).

58 Id.

59 Linetsky, Protection of “Innocent Lawbreakers”: Striking the Right Balance in the Private Enforcement of Anti “Junk Fax” Provisions of the Telephone Consumer Protection Act, 90 Neb. L. Rev. at 90 (2011).

60 See, e.g., Savanna Group, Inc. v. Trynex, Inc., No. 10 C 7995, 2013 WL 4734004 at *8 (N.D. Ill. Sept. 3, 2013).

61 A Fast Sign Co., 734 S.E.2d at 31-32.

62 Am. Blastfax, Inc., 164 F. Supp. 2d at 900-01.

63 Universal Elections, Inc., 862 F. Supp. 2d at 466.

64 Pasco v. Protus IP Solutions, Inc., 826 F. Supp. 2d 825, 836 (D. Md. 2011) (“[T]he Excessive Fines clause only applies to civil damages when the government is prosecuting the case or will receive a share of the damages.”).

65 E.g., id. at 834-35; Centerline Equip. Corp. v. Banner Personal Serv., Inc., 545 F. Supp. 2d 768, 778 (N.D. Ill. 2008).

66 Transcript of Oral Argument at 51, 55, Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (No. 10-1195).

Daniel Tramel Stabile is an attorney at Shutts & Bowen LLP. He received a J.D. from the George Washington University Law School, a B.A. from the University of Virginia, and is admitted to the Florida and New York bars. The author specifically acknowledges Kathleen Maurer for her research contributions to this article.