A TCPA Penalty can be Awarded (and Trebled!) Irrespective of Whether the Claimant ever Received the Unwanted Fax Advertisement.
Most wires have picked up the Georgia Supreme Court’s decision in A FAST SIGN COMPANY, INC., d/b/a FASTSIGNS v. AMERICAN HOME SERVICES, INC., S11G1708 (Nov. 5, 2012), because it involved a $459 million dollar judgment against a fax blaster for sending 306,000 unsolicited fax advertisements. That dollar amount may be staggering, but the bigger news is that such liability was imposed without the claimants ever establishing that they actually received a single unwanted fax advertisement. Indeed the Georgia Supreme Court held that receipt of the fax is not a necessary element of proof. Rather, to establish a TCPA claim, the claimant need only show: (1) the defendant used a fax machine or similar device to send a fax to the plaintiff; (2) that the fax was unsolicited; and (3) that the fax contained an advertisement. Moreover, if the sending of the fax is shown to be “willful and knowing,” the penalty of $500 per fax can be trebled – even though the claimant may have never received the fax.
This analysis confirms that the TCPA is less concerned about compensating the claimant for actual injury (which would presumably require a showing that the fax was actually received) and more about punishing and deterring those that send unwanted fax advertisements. In fact, that is, in part, why the Illinois Appellate Court in Standard Mutual Insurance Company v. Lay, 2012 IL App (4th) 110527 (April 20, 2012)(see April 23, 2012 blog entry), found that the penalty associated with a TCPA violation is in the nature of punitive damages and uninsurable, as its deterrent effect would be lost if an insured can merely shift the penalty to its insurer. The Illinois Supreme Court has accepted a petition for leave to appeal in the Standard Mutual case so we may see more discussion about the punitive and deterrent effect of the TCPA and whether, in fact, such awards can be shifted to the insurer.