Pasco v. Protus IP Solutions, Inc.
826 F. Supp. 2d 825
D. Maryland2011Background
- TCPA and Maryland TCPA civil actions by five plaintiffs alleging unsolicited fax advertisements from Protus IP Solutions (Protus).
- Approximately 357 faxes at issue; plaintiffs seek liability for all, while Protus contests liability on several faxes.
- Protus contends some faxes were not sent by Protus, or not within its liability, including 79 faxes with no matching transmission data.
- Plaintiffs rely on fax header style and toll-free removal numbers as proof of Protus involvement; Protus argues these are insufficient.
- Key issues include standing, broadcaster liability, statutes’ constitutionality, tolling/limitations, and damages under federal and Maryland TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for the 79 faxes lacking Protus transmission data | Plaintiffs rely on unique header style and removal numbers to link faxes to Protus | Header styles and numbers are insufficient to definitively prove Protus sent the faxes | Summary judgment granted for Protus on those 79 faxes |
| Constitutionality of TCPA and Maryland TCPA damages | Damages provision may be constitutional; supports private action | Damages are excessive/unconstitutional under due process and First Amendment | TCPA damages provisions constitutional; no due process violation; First Amendment valid as applied generally |
| Fax broadcaster liability under TCPA | Protus acted as sender through high involvement; liable | Protus is a broadcaster with no high involvement; not liable as sender | Issue for trial; need to determine Protus’s level of involvement (high involvement precludes broadcaster defense) |
| Equitable tolling and statute of limitations | Discovery tolling may apply due to lack of knowledge about Protus involvement | No equitable tolling under Maryland/federal law; accrual at receipt of fax | Equitable tolling unavailable; claims accrue at receipt; Protus entitled to summary judgment for faxes before dates |
| Corporate standing under Maryland TCPA | Corporate plaintiffs may recover under Maryland TCPA | Only individuals have standing under § 14-3202 | Corporate plaintiffs lack standing; Protus entitled to summary judgment on those claims |
Key Cases Cited
- Roberts v. United States, Jaycees, 468 U.S. 609 (U.S. 1984) (due process vagueness standard guidance)
- Am. Metal Forming Corp. v. Pittman, 52 F.3d 504 (4th Cir.1995) (conflicting affidavits create genuine issues of material fact)
- Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649 (8th Cir.2003) (TCPA damages defenses; constitutional challenges rejected)
- Destination Ventures, Ltd. v. FCC, 46 F.3d 54 (9th Cir.1995) (statutory authority and scope of TCPA interpretations)