American Home Services, Inc. v. a Fast Sign Co.
310 Ga. App. 315
Ga. Ct. App.2011Background
- AHS advertised via fax transmissions in 2002–2003 under Sunbelt contracts sending >300,000 faxes to Atlanta-area machines.
- Fastsigns sued AHS under TCPA for unsolicited fax advertisements and sought class action certification.
- Trial court certified the class and held a bench trial on liability/damages, finding 306,000 unsolicited faxes and awarding $459 million.
- appellate court later vacated the judgment, holding damages must be based on receipt of unsolicited faxes, not simply the number sent.
- Remand ordered for reconsideration consistent with TCPA and this opinion, without advisory rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA private action requires receipt of an unsolicited fax | Fastsigns argues recovery is allowed for sending faxes to any recipient | AHS argues damages may be based on faxes sent, regardless of receipt | Yes; receipt required; cannot rely solely on sent faxes |
| Whether damages should be based on received faxes rather than sent count | Fastsigns seeks treble damages based on the number of faxes sent | AHS contends damages align with statutorily defined receivable damages | Damages must reflect receipt, not mere transmission; remand for proper calculation |
Key Cases Cited
- Carnett's, Inc. v. Hammond, 279 Ga. 125, 610 S.E.2d 529 (2005) (private TCPA action requires receiving an unsolicited fax)
- Centerline Equip. Corp. v. Banner Personnel Svcs., 2009 WL 1607587; 2009 U.S. Dist. LEXIS 48092 (N.D. Ill. 2009) (private action based on receiving unsolicited faxes)
- Levitt v. Fax.com, 2007 WL 3169078; 2007 U.S. Dist. LEXIS 83143 (D. Md. 2007) (private TCPA action based on receipt)
- Murphey v. Lanier, 997 F. Supp. 1348; 204 F.3d 911 (S.D. Cal. 1998; 2000) (limits damages to recipients; authority cited)
- Klein v. Vision Lab Telecommunications, 399 F. Supp. 2d 528 (S.D.N.Y. 2005) (damages for receipt-related harm; supports requirement)
- All American Painting v. Financial Solutions, etc., 315 S.W.3d 719 (Mo. 2010) (illustrates receipt-based recovery concept)