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11th Cir. Revives Lawsuit Over an Unseen Junk Fax

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By William Peacock, Esq. on November 03, 2014 1:42 PM

We were just talking about junk faxes, largely because our office keeps getting them. (And no, fool, I don't want to hire someone who uses a fax machine to design a mobile app for my company.) They're annoying as heck, and they're also prohibited by the Telephone Consumer Protection Act (TCPA).

The case of Palm Beach Golf Center-Boca Inc. v. John G. Sarris, DDS, involves a junk fax, sent by a dentist, that a golf club probably received -- the fax logs say that it was successfully transmitted and that the two fax machines connected for over a minute -- but nobody seems to have seen. Nonetheless, the Eleventh Circuit has revived the putative class-action lawsuit and will allow it to proceed on two grounds: the TCPA and common law conversion.

Occupy Phone Lines

The plaintiff, Palm Beach Golf, made the common sense argument that it doesn't need spam in hand -- it only needs to show that its telephone line was occupied to satisfy the Telephone Consumer Protection Act.

The Eleventh Circuit agreed, stating: "Palm Beach Golf has two bases for Article III standing, either of which is sufficient to satisfy the injury requirement. First, it has suffered a concrete and personalized injury in the form of the deprivation of the use of its fax machine for the period of time required for the electronic transmission of the data (which, in this case was one minute)."

As the Eleventh Circuit explained, the legislative history of the TCPA supports this position. The law was intended to protect citizens from transmissions that "[occupy] the recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax."

"Second, Palm Beach Golf possesses standing because the TCPA functions as a congressionally created 'bounty,' permitting private individuals to sue based on a statutory violation," the opinion continued. "[W]here a federal statute prohibits conduct, Congress may expressly permit individual citizens to bring suit against those who engage in the prohibited conduct."

Whose Fax Is It Anyway?

The district court had also dismissed the lawsuit because Palm Beach Golf didn't plead vicarious liability, and the defendant wasn't the person who sent the fax -- a third-party advertising agency was. However, the Eleventh Circuit pointed to an FCC memorandum that clearly states "that the TCPA provided for direct liability for an entity on whose behalf goods or services were promoted by unsolicited fax advertisement."

Really? Conversion?

While most of the Eleventh Circuit's ruling was uncontroversial, the last bit, which allowed the Florida-law conversion claim to proceed, caused one of the panel members to dissent in part.

The district court and the dissent pointed to the de minimis value of a single piece of paper, ink, and the use of the fax machine for a minute, but the majority cited an older state appellate case that held that "the definition does not require property to have any specific value whatsoever in order to be subject to conversion."

District Court Judge Hinkle, in partial dissent, argued against the conversion claim, first noting that "an unsolicited telephone call has never been thought to be a conversion of the recipient's telephone line. Neither is an unsolicited fax. Similarly, an unsolicited email does not convert the recipient's Internet connection. Unsolicited snail mail does not convert the recipient's mail box."

As for the paper and ink, "there is much to be said for the view that such a claim runs afoul of the principle that the law does not deal with trifles." Hinkle agreed that junk faxes are annoying, but would leave consumers with the Congress-provided remedy: a TCPA claim.

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