On September 21, the FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling clarifying that businesses advertised via fax should not face “sender liability” for unsolicited faxes sent without prior authorization. See Declaratory Ruling at ¶¶ 9, 17, In the Matter of Akin Gump, CG Docket No. 02-278 (Sept. 21, 2020). This ruling provides some much-needed guidance on the scope of sender liability under the Junk Fax Prevention Act, an issue which has divided the courts.
In 2005, the Junk Fax Prevention Act amended the TCPA to prohibit the sending of unsolicited advertisements via facsimile, absent some excepted relationship between sender and recipient. See Pub. L. No. 109-21, 119 Stat. 359 (2005). The FCC has defined the “sender” of a fax for liability purposes as any “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.” 47 C.F.R. § 64.1200(f)(10) (2019).[1] The Commission also has observed that the “sender” of a fax is usually, but not always, the business advertised in the fax. See “2006 Junk Fax Order,” FCC Rcd. 3787, 3808, ¶ 39 (2006).
From this guidance, courts have developed varying tests for junk-fax sender liability, creating inconsistent standards of conduct for businesses across jurisdictions. See, e.g., Bridgeview Health Care Center v. Clark, 816 F.3d 935, 937 (7th Cir. 2016) (applying principles of agency law); Imhoff Investment, LLC v. Alfoccino, Inc., 792 F.3d 627, 634 (6th Cir. 2015) (adopting strict liability); Palm Beach Golf Center-Boca v. John G. Sarris, DDS, 771 F.3d 1274, 1257-58 (11th Cir. 2014) (adopting distinct multi-factor test); FDS Restaurant, Inc. v. All Plumbing, Inc., 2020 WL 1465919, at *15 (D.C. Mar. 26, 2020) (adopting agency approach); Bais Yaakov of Spring Valley v. Educational Testing Service, 367 F. Supp. 3d 93, 117 (S.D.N.Y. 2019) (adopting multi-factor test from Palm Beach, supra); E&G, Inc. v. Mount Vernon Mills, Inc., 316 F. Supp. 3d 908, 912 (D.S.C. 2018) (recognizing multi-factor test); Physician’s Healthscore, Inc. v. Vertex Pharms., Inc., 247 F. Supp. 3d 138, 152 (D. Mass. 2017) (holding that the “only relevant consideration” in determining sender liability is whether “the defendant hired an independent contractor to transmit facsimile[] advertise[ments]”); Supply Pro Sorbents, LLC v. RingCentral, Inc., 2016 WL 5870111, at *3 (N.D. Cal. Oct. 7, 2016) (following Sixth Circuit’s strict liability approach); Bais Yaakov v. Varitronics, LLC, 2015 WL 1529279, at *4 (D. Minn. Apr. 3, 2015) (rejecting strict liability). (We previously blogged about the circuit...
