Georgia Supreme Court Holds Faxes Need Simply Be Sent, Not Received In Order To State TCPA Claim in $459 Million TCPA Case

A Fast Sign Company, Inc. d/b/a Fastsigns v. American Home Services, Inc., No. S11G1708, 2012 WL 5381254 (Ga. Nov. 5, 2012) In 2002 and 2003, Defendant, a siding, window and gutter installation company, contracted with a third party to send a total of 318 unsolicited advertisements to various fax machines in the Atlanta, Georgia area. A class action complaint was filed, after which time a bench trial was held and a $459 Million verdict was entered. The Georgia Court of Appeals vacated the verdict, concluding that the trial court erroneously based liability and damages on the number of unsolicited faxes sent, rather than the number of faxes received. Reversing and remanding, the Georgia Supreme Court stated: "[t]he reality that some plaintiffs may have not received the unlawful fax transmissions does not defeat their entitlement to damages. Although the harm resulting from unsolicited fax transmissions is often described in terms of receipts, the harm also extends to intended recipients, or targets of mass fax advertising. For example, a business may have considered it necessary to turn off its fax machine because of unwanted fax transmissions. The business might not have received the advertising, but it would still have incurred a disadvantage as a result of advertisers sending the fax messages. The legislation expressly using the word 'send' is to be construed to mean 'send' and not 'receive.' Alternatively stated, a sender is liable for the unsolicited advertisements it attempts to send to fax machines, whether or not the transmission is completed or received by the targeted recipients. Indeed, requiring receipt to state a cause of action under the TCPA would create a limitation not contemplated by Congress." 

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