Court of Appeal (Ga.) Reviews Damage Issue on $459 Million TCPA Case

In American Home Services, Inc. v. A Fast Sign Co., Inc., — S.E.2d —-, 2011 WL 1782083 (Ga.App. 2011), the Georgia Court of Appeal held that the measure of damages under the TCPA (in a fax case) is based on receipt, not sent.   In reviewing a $459 million verdict, the Court of Appeal explained: 

Even assuming—without deciding—that the evidence supports a finding that AHS sent 306,000 faxes, the trial court’s judgment is fundamentally flawed. In awarding $459 million to the class, the trial court apparently adopted class counsel’s argu-ment that the class simply needed to “show that a fax was sent.” Again, however, our Supreme Court has concluded that only plaintiffs who “receive[ ] an ‘unsolicited’ fax” may recover in a private TCPA action. Carnett’s, Inc., supra. We recognize that certain foreign courts do not require receipt for recovery. See, e.g., Hinman v. M & M Rental Center, 596 F.Supp.2d 1152, 1158–1159 (N.D.Ill.2009). But other courts—including our Supreme Court—do, and we cannot ignore this requirement. Moreover, the requirement makes sense. The statute’s private cause of action authorizes a damages recovery to “compensate the plaintiff for the annoyance, the conversion of paper and ink and the effective preemption of his fax machine during the intervals when it is receiving advertisement transmissions.” Klein v. Vision Lab Telecommunications, 399 FSupp2d 528, 540 (S.D.N.Y.2005). A person or entity that does not receive an unsolicited fax has no need for such recovery.  ¶   The trial court incorrectly applied the TCPA and awarded damages based on the number of facsimile advertisements sent, rather than received. The judgment, therefore, cannot stand. Accordingly, we vacate the judgment and remand so that the trial court can properly consider the evidence presented at the bench trial in accordance with this opinion and the TCPA. See Smith, supra at 482, 699 S.E.2d 796; Homelife Communities, supra at 123, 633 S.E.2d 423. In so doing, we express no opinion as to the sufficiency of the evidence presented or the propriety of the trial court’s prior factual findings. The trial court must consider the evidence anew, and we will not make any rulings that, under the circumstances of this case, might be viewed as advisory. See Huff v. Harpagon Co., 286 Ga. 809, 811(2), 692 S.E.2d 336 (2010) (Georgia appellate courts are not authorized to render advisory opinions).