Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Summary judgment denied in two businesses’ TCPA claim against football team, (Dec 19, 2014)

By Linda O’Brien, J.D., LL.M.

Material issues of fact precluded the grant of cross motions for summary judgment in a putative class action by an auto repair business and chiropractic clinic against a professional football franchise for allegedly directing a marketer to send unsolicited fax advertisement in violation of Telephone Consumer Protection Act (TCPA), the federal district court in Tampa, Florida has decided (Cin-Q Automobiles, Inc. v. Buccaneers Limited Partnership, December 17, 2014, Porcelli, A.).

In January 2009, Buccaneers Limited Partnership (BLP), owner of the Tampa Bay Buccaneer football franchise, engaged FaxQom, a purported entity claiming to be in the business of facsimile marketing, to send a series of facsimiles advertising Tampa Bay Buccaneer tickets and signed a fax indemnity agreement. In July, August, and October 2009, BLP directed FaxQom to fax such advertisements to numbers comprising area codes in the greater Tampa Bay area.

Some of the faxes were sent to Gainesville auto repair company, Cin-Q Automobiles and to the Medical & Chiropractic Clinic (MCC) in Tampa. Cin-Q and MCC filed a class action suit against BLP, alleging that the faxed advertisements violated the TCPA. The parties filed cross motions for summary judgment.

The court determined that material issues of fact existed regarding whether the fax advertisements were sent “on behalf of” BLP. The TCPA, in part, prohibits any person from using a fax machine, computer, or other device to send an unsolicited advertisement to a fax machine if the sender or recipient is in the United States. The Federal Communications Commission (FCC), in prescribing regulations implement the Act, clarified the term “sender” in a 2006 ruling to mean “the sender is the person or entity on whose behalf the advertisement is sent. In most instances, this will be the entity whose product or service is advertised or promoted in the message.”

The plaintiffs’ argument that an entity is a per se sender under the TCPA since their goods or services appear as advertised in the faxes at issue was rejected as an impermissible construction of the TCPA. The court noted that the plaintiffs could not dispense with the burden of proving that the faxes were sent on behalf of BLP merely because their advertising was included in the faxes.

According to the court, there was evidence that BLP maintained continued input and control over the content of the transmitted faxes. FaxQom provided assurances, in the form of an indemnity agreement, that all of the numbers sent faxes were “opt-in,” legal techniques were used to gather fax data, and FaxQom was the only entity authorized to work on BLP’s account. There was also evidence that BLP had no access to the fax lists and was unaware of FaxQom’s outsourcing to third parties. A reasonable jury could conclude that BLP relied on FaxQom’s assurances and that the faxes were not sent on behalf of BLP and that FaxQom and its third party vendor were the true sources of the offending conduct. Since the source, scope, and form of the fax directive was inconclusive, a material issue of fact existed as to whether BLP was an entity on whose behalf the facsimiles were sent in order to qualify as a sender, the court concluded.

The case is No. 8:14-cv-01592-AEP.

Attorneys: Brian J. Wanca (Anderson & Wanca), and Michael C. Addison (Addison & Howard, PA) for Cin-Q Automobiles, Inc., and Medical & Chiropractic Clinic, Inc. Barry A. Postman (Cole, Scott & Kissane, PA) for Buccaneers Limited Partnership.

Companies: Cin-Q Automobiles, Inc.; Medical & Chiropractic Clinic, Inc.; Buccaneers Limited Partnership

Cases: Privacy FloridaNews