6th Cir. Finds Art. III Standing for TCPA Class Plaintiff; Finds Defendant Directly, rather than Vicariously, Liable for Unsolicited Faxes

In Imhoff Investment, L.L.C. v. Alfoccino, Inc., 2015 WL 4079438,(6th Cir. 2015), the Court of Appeals for the 6th Circuit found Article III standing for a TCPA class plaintiff, and imposed direct, rather than vicarious, liability on a company on whose behalf an unsolicited fax was sent.  The Sixth Circuit Court of Appeals summarized its holding as follows:

Plaintiff Avio, Inc. alleges that Defendant Alfoccino violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(1)(C), (b)(3), by hiring Business to Business Solutions (B2B) to send unsolicited facsimile advertisements to Avio and a class of similarly situated persons. The district court granted Alfoccino’s motion for summary judgment, dismissing Avio’s case for lack of Article III standing. It also found—as a second, independent basis for granting Alfoccino’s motion—that Avio could not prove Alfoccino was vicariously liable for B2B’s transmission of the faxes. Because Avio has demonstrated that it does have Article III standing to bring its claim, and because the pertinent FCC regulations indicate that primary, not vicarious liability attaches to Alfoccino under the TCPA, we REVERSE the district court’s order granting summary judgment for Alfoccino and REMAND the case to the district court for further proceedings.

The 6th Circuit found standing.

In the instant case, the district court ruled that Avio lacked Article III standing, noting that it “refuses to find that a plaintiff satisfies Article III’s injury in fact requirement when all it knows about its alleged injury is based upon what someone else told it.” Avio, Inc. v. Alfoccino, Inc., 18 F.Supp.3d 882, 891 (E.D.Mich.2014). Sixth Circuit authority filed several months after the district court’s opinion, however, points to the opposite conclusion: that plaintiff Avio, as the recipient of Alfoccino’s unsolicited advertising faxes, does allege an injury sufficient to meet the requirement for Article III standing. . .  Here, the district court adopted the reasoning of the district court decision in Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 981 F.Supp.2d 1239 (S.D.Fla.2013), emphasizing that Plaintiff’s injury is outside of “its own personal knowledge” because it did not remember nor did it produce the faxes. Avio, 18 F.Supp.3d at 889. Subsequently, however, the Eleventh Circuit reversed its district court, as explained above. Under our precedent, therefore, and that of other circuits, Biggerstaff’s report is adequate to establish that Avio was a recipient of Alfoccino’s two unsolicited faxed advertisements and has standing.  The opinion below correctly notes that the TCPA bans unsolicited faxed advertisements, not all unsolicited faxes. But its conclusion that a “plaintiff must see the fax to discern whether it is an advertisement or not,” id. at 890, is incorrect. Biggerstaff’s report indicates that B2B faxed two particular advertisements to Avio and 7,624 other recipients. And Alfoccino concedes that it hired B2B to fax advertisements on its behalf and that it ultimately paid B2B for doing so. On these facts, a reasonable trier of fact could find by a preponderance of the evidence that the content of the two faxes at issue was advertising material prohibited by the TCPA.  Circuit precedent in American Copper and the text and legislative history of the TCPA itself point to the conclusion that Avio has Article III standing to bring its claim against the defendants.

The 6th Circuit said that the parties’ characterization of the defendant’s liability as secondary wrongfully analyzed the issue:  the defendant’s liability was direct under the TCPA.

We now address the district court’s second, independent basis for granting Alfoccino’s motion for summary judgment: that the TCPA provides only for indirect—not direct—liability, and that Avio had failed to meet its burden of production with regard to Alfoccino’s indirect liability. The pertinent FCC regulations, however, indicate that Alfoccino may be held directly liable for the faxes sent to Avio at issue here, and Avio has presented sufficient evidence to create a triable issue of fact on that point. . . . The plain language of the TCPA and the FCC’s accompanying definition of “sender” together establish that under the TCPA direct liability attaches to the entity whose goods are advertised as opposed to the fax broadcaster. Alfoccino is not entitled to summary judgment because Avio has presented evidence that Alfoccino was the entity “whose goods or services are advertised or promoted in the unsolicited advertisements” it received from B2B on two occasions in late 2006. It could therefore be directly liable to Avio as the sender of the fax.  Rather than applying the FCC’s codified definition of “sender” to the TCPA, the district court applied the FCC’s decision in DISH Network, 28 F.C.C. Rcd. 6574 (2013). The DISH Network decision, however, applies in a different context: the determination of direct and vicarious liability for telemarketing voice calls. The TCPA makes it unlawful in certain circumstances to “initiate” a telephone call to a residential telephone line using an artificial or prerecorded voice. 47 U.S.C. § 227(b)(1)(B). And an FCC regulation makes it unlawful in certain circumstances to “initiate” a telephone call to a residential subscriber whose number is registered on the national do-not-call registry. 47 C.F.R. § 64.1200(c)(2).  The FCC regulations governing these voice calls create distinctions that do not apply to fax transmissions. They identify who “initiates” these voice calls by distinguishing between the “telemarketer” and the “seller.” The “telemarketer” is defined as “the person or entity that initiates a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(11). By contrast, the “seller” is defined as “the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(9). The DISH Network ruling applied these regulatory definitions of “seller” and “telemarketer” to hold that the party that is directly liable for unlawfully “initiat[ing]” such a call is the telemarketer that “takes the steps necessary to physically place a telephone call,” not the seller whose goods or services the telemarketer promotes. DISH Network, 28 F.C.C. Rcd. at 6575 ¶ 3, 6583 ¶¶ 26–27. The DISH Network decision further found that the seller may be vicariously liable for such violations under federal common law agency principles. Id. at 658493 ¶¶ 28–47.  The DISH Network analysis is inapplicable to the fax transmissions at issue here. The words “seller” and “telemarketer” are not used in the sections of the TCPA and accompanying regulations that apply to unsolicited fax advertisements, and DISH Network did not address the FCC’s definition of “sender” codified at 47 C.F.R. § 64.1200(f)(10). The FCC has subsequently made it clear that DISH Network pertains only to voice telephone calls, and that DISH Network had not altered the FCC’s interpretation of the TCPA itself or the plain language of the FCC’s accompanying regulations pertaining to unsolicited fax advertisements. The district court in Palm Beach had applied DISH Network to reach the same conclusion as the district court in the instant case. Palm Beach Golf Ctr.-Boca, Inc. v. Sarris, 781 F.3d at 1253–54. But when Palm Beach was appealed, the Eleventh Circuit contacted the FCC, referenced DISH Network, and asked the Commission to address its position “on whether the [TCPA] and its accompanying regulations allow a plaintiff to recover damages from a defendant who sent no facsimile to the plaintiff, but whose independent contractor did.” FCC Letter Br., Palm Beach Golf Center–Boca, Inc. v. Sarris, No. 13–14013, 2014 WL 3962595 (11th Cir. July 17, 2014), at *1.   In a letter brief, the FCC responded in the affirmative and explained that “[t]he DISH Network ruling did not address or alter the treatment of facsimile transmissions under the TCPA or the Commission’s implementing regulations.” Id. The FCC’s letter brief first discussed the voice-call-related TCPA provisions and accompanying regulations at issue in the DISH Network decision as described above, id. at 2–3, then contrasted them with the statutory and regulatory provisions pertaining to fax advertisements. It explained that: “The TCPA uses different language governing facsimile transmissions. Specifically, the TCPA prohibits the “use [of] any telephone facsimile machine … to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added). In contrast with the Commission’s construction of “initiate” in the robo-call and do-not-call contexts-where FCC rules describe the directly-liable call “initiat[or]” as the “telemarketer” that physically makes the call—the FCC defines the directly—liable “sender,” for purposes of the TCPA’s unsolicited facsimile advertisement prohibition, as “the 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). In other words, under the plain text of that definition—and unlike the robo-call and do-not-call contexts—direct liability for sending an unsolicited facsimile advertisement attaches to the entity (defined as the “sender”) whose goods or services are being promoted, and not generally to the entity that physically transmits the facsimile.  FCC Letter Br., Palm Beach Golf Center–Boca, 2014 WL 3962595, at *3 (underlined emphasis added).  Given that DISH Network does not have any bearing on the FCC’s regulations pertaining to fax transmissions, liability turns on the plain language of the FCC’s definition of “sender” in 47 C.F.R. § 64.1200(f)(10). Because this definition includes those “whose goods or services are advertised or promoted in the unsolicited advertisement,” Alfoccino is a “sender” under the FCC’s regulations implementing the TCPA. Direct liability may therefore attach to Alfoccino if an unsolicited advertisement for its goods or services was faxed to an entity with which it had no existing business relationship.  On appeal, Alfoccino notes that the TCPA’s language concerning junk faxes makes it unlawful “to use any telephone facsimile machine … to send … an unsolicited advertisement….” Appellees’ Br. 30 (quoting 47 U.S.C. § 227(b)(1)(C) (emphasis added)). According to Alfoccino, because it did not itself “use” (in the sense of physically operate) a fax machine to send advertisements to Avio, it escapes direct liability under the TCPA. But the word “use” in the statute is directly tied to the word “send.” Alfoccino’s focus on the word “use” is therefore unconvincing in light of the FCC’s regulation defining “sender,” which has resolved the issue.  Neither the FCC’s Palm Beach letter nor its regulations explain why the FCC has attached direct liability to the “telemarketer” that actually places a voice call while requiring proof of vicarious liability for the “seller” on whose behalf the call was made, yet has attached direct liability to the “sender” on whose behalf a fax advertisement was sent by a third party. Nonetheless, though Alfoccino questioned the reasoning of the FCC’s letter brief and its application to this case, it has not directly challenged the legitimacy of the FCC’s definition of sender in § 64.1200(f)(10). Nor is such a challenge likely to be viable because the Hobbs Act confers jurisdiction on Courts of Appeal to review FCC regulations only by direct appeal from the FCC. 28 U.S.C. § 2342(1); Leyse v. Clear Channel Broadcasting, Inc., 545 F. App’x 444, 454–58 (6th Cir.2013); La Voz Radio de la Communidad v. FCC, 223 F.3d 313, 320 (6th Cir.2000); CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 448–49 (7th Cir.2010).  The pertinent FCC regulations are explicit that the party whose goods or services are advertised—and not the fax broadcaster—is the sender. We therefore find that Alfoccino is a party subject to direct liability for the unsolicited Alfoccino advertisements B2B transmitted to Avio in violation of the TCPA.