Antitrust Law Daily Wrap Up, PRIVACY NEWS: Supreme Court asked to settle vicarious liability question under TCPA, (Jul 21, 2016)

By Greg Hammond, J.D.

A health care center in Illinois is asking the Supreme Court to hold that a "sender" under the 1995 Federal Communications Commission (FCC) regulations is the entity "on whose behalf" a fax is sent, and that such a determination does not require proof of common law agency. The health care center seeks review of a decision by the U.S. Court of Appeals in Chicago, which affirmed that an individual was not liable, under the Telephone Consumer Protection Act (TCPA), for faxes sent by his marketing company (Bridgeview Health Center, Ltd. v. Clark, Dkt. 16-91).

After receiving an unsolicited fax ad for Affordable Digital Hearing’s (ADH’s) services, Bridgeview Health Care Center, Ltd. filed a class action suit against Jerry Clark, ADH’s owner, for violating the TCPA. The district court determined that Clark authorized fax ads sent within 20 miles of ADH. However, the court concluded that Clark was not liable for the fax ads sent to businesses beyond a 20-mile radius, including faxes sent to Bridgeview. The U.S. Court of Appeals in Chicago affirmed.

The petition asks whether the TCPA and its regulations, as they existed prior to August 1, 2006, which hold that the party "on whose behalf" an unsolicited facsimile advertisement is sent is directly liable under the statute and the regulations sub silentio import common law agency requirements.

According to Bridgeview, the Sixth and Eleventh Circuits have given deference to the FCC’s interpretation of its 1995 FCC regulations—that a reasonable and consistent interpretation of its "sender" regulation is that common law agency principles do not govern. Bridgeview, however, claims that the Seventh Circuit’s decision—which affirmed a finding that Clark had no vicarious liability for the faxes promoting his business that the marketing company sent to people outside the designated geographic radius—created a circuit split.

Attorneys: David M. Oppenheim (Bock, Hatch, Lewis & Oppenheim LLC) for Bridgeview Health Center, Ltd.

Companies: Bridgeview Health Center, Ltd.

News: Privacy