Sixth Circuit Enforces TCPA

In an opinion yesterday called Imelhoff Investments v. Alfoccino, Inc., the U.S. Court of Appeals for the Sixth Circuit rejected arguments that would limit the liability of senders of junk faxes under the Telephone Consumer Protection Act (TCPA).

First, the court held that a plaintiff's standing in a junk fax case doesn't depend on whether it printed out a fax that was sent to it. That's an important holding because with new technology many faxes don't find their way onto paper. (For example, I have my home office fax machine set to notify me of faxes but not print them out.) The court recognized that receiving an unsolicited fax injures people in ways other than the waste of paper and ink, and held that Congress could appropriately allow people to sue over faxes they never printed.

Second, the court held that under the TCPA as implemented by FCC regulations, someone who has a fax advertisement for their business sent by a contractor or other third party is directly liable as a principal if the fax violates the TCPA. The court noted that the FCC rules treat telemarketing voice calls differently by differentiating between the telemarketer who places the call, who is directly liable, and the seller on whose behalf the telemarketer calls, who is vicariously liable. The court expressed some uncertainty as to why the FCC had treated faxes and calls differently in this regard, but said that didn't matter because a challenge to the regs was not before it.

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