United States District Court, D. Connecticut
GORSS MOTELS, INC., individually and as the representative of a class of similarly-situated persons, Plaintiff,
AT&T MOBILITY LLC and AT&T MOBILITY NATIONAL ACCOUNTS LLC, Defendants.
RULING ON DEFENDANTS' MOTION TO DISMISS
Bond Arterton, U.S.D.J.
Gorss Motels, Inc., suing individually and as the
representative of a class of similarly situated persons,
alleges that Defendants AT&T Mobility LLC and AT&T
Mobility National Accounts LLC (together "AT&T"
or "Defendant") sent unsolicited facsimiles
("faxes") to Gorss Motels and other similarly
situated plaintiffs in violation of the Telephone Consumer
Protection Act ("TCPA"), as amended by the Junk Fax
Prevention Act ("JFPA"). Defendant moves [Doc. #
40] to dismiss the Amended Complaint [Doc. # 39]. For the
reasons articulated below, Defendant's Motion is denied.
Facts Alleged in Plaintiff's Amended Complaint
sent fax advertisements to Plaintiff and a class of other
persons, "including, but not limited to, " an
unsolicited advertisement sent "[o]n or about January
13, 2014." (Am. Compl. ¶ 11; see Ex. A
(the Fax) to Am. Compl. [Doc. # 39-1].) That fax states,
"Learn about AT&T's new Mobile Share Value
Plan!" and "For a limited time, switch from
T-Mobile and receive up to $450 when you trade in your
current smartphone!" (See Ex. A to Am. Compl.)
It further states, "All products and services are
manufactured and/or provided by AT&T and not Wyndham
Worldwide Corporation ("Wyndham") or its
affiliates, " and "Neither [Wyndham] nor its
affiliates are responsible for the accuracy or completeness
of any statements made in this advertisement, the content of
this advertisement (including the text, representations and
illustrations) or any material on a website to which the
advertisement provides a link or a reference."
"did not obtain Plaintiffs 'prior express invitation
or permission' before sending Exhibit A." (Am.
Compl. ¶ 19). The fax was sent "on behalf of
AT&T "pursuant to an agreement with Wyndham
Worldwide Corporation or one of its affiliates."
(Id. ¶ 15). The "goods or services"
advertised in Exhibit A are AT&T's, and AT&T
"receive[s] some or all of the revenues" from the
sale of those goods or services. (Id. ¶¶
print at the bottom of the page, the fax says, "To opt
out from future faxes, email
email@example.com or call this tollfree
number: (877) 764-4212" (Ex. A to Am. Compl.), which
Plaintiff alleges is non-compliant with 47 C.F.R. §
64.1200(a)(4) because it is not "clear and conspicuous;
. . . does not state that a sender's failure to comply
within 30 days with an opt-out request that complies with the
regulations is unlawful" and fails to "contain a
fax number to which the recipient can send an opt-out
request." (Am. Compl. ¶ 22.)
unsolicited advertisements caused "concrete injury"
to Plaintiff because (1) they: "used the Plaintiffs and
the other class members' telephone lines and fax
machine[s], " (2) "caused Plaintiff and the other
recipients to lose paper and toner consumed in the printing
of the Defendants' faxes, " (3) "cost the
Plaintiff and the other class members time" that
"otherwise would have been spent on the Plaintiffs and
the other class members' business activities, " and
(4) "unlawfully interrupted the Plaintiffs and other
class members' privacy interests in being left
alone." (Id. ¶ 41).
asserts a single cause of action claiming that AT&T sent
unsolicited fax advertisements to Plaintiff and a class of
other persons. As part of that claim, it argues that even if
AT&T claims to have sent its faxes pursuant to an EBR or
with the recipients' "prior express invitation or
permission, " the failure of Defendant to comply with
the opt-out notice requirements set forth in 47 C.F.R. §
64.1200(a)(4)(iii) & (iv) constitutes the transmission of
an unsolicited advertisement. Defendant argues that
Plaintiffs claim must be dismissed because it fails to
sufficiently allege Plaintiff never gave permission to
receive the fax. Defendant further contends that because the
faxes were actually solicited, no opt-out notice is required
and that, to the extent Plaintiff relies only upon the
insufficient opt-out notice to support its claim, it has not
alleged a concrete and particularized injury and therefore
Plaintiff Alleged the Fax was Unsolicited Under the
Junk Fax Provisions of the TCPA make it unlawful for
"any person within the United States, or any person
outside the United States if the recipient is within the
United States ... to use any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement[.]" 47
U.S.C. § 227(b)(1)(c) (emphasis added). The TCPA defines
unsolicited advertisement to mean "any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any
person without that person's prior express invitation
or permission, in writing or otherwise." 47 U.S.C.
§ 227(a)(5) (emphasis added). Thus, in order for
Plaintiff to make out a valid TCPA claim, the fax at issue
must have been sent without its prior express permission,
i.e. consent. See e.g. Cochran v. Massey, No.
3:12-CV-765 DRH DGW, 2014 WL 335288, at *2 (S.D. 111. Jan.
30, 2014) ("The question of permission or consent is ...
dispositive ... under the TCPA.").
argues that Plaintiff failed to allege that it had not given
permission to receive the fax from the physical sender,
Wyndham, and therefore that it cannot state a claim under the
TCPA. Put otherwise, Defendant contends there
can be no claim against a company whose products are
advertised in a fax if the plaintiff separately provided
permission to the entity that actually sent the fax.
claims it need not allege it never gave Wyndham permission,
because the "sender" as defined in 47 C.F.R. §
64.1200(f)(10) was AT&T. There are two ways in which a
person or entity may qualify as a sender. First, the term
sender "means the person or entity on whose behalf a
facsimile unsolicited advertisement is sent." 47 C.F.R.
§ 64.1200(f)(10). Here, Plaintiff alleges the fax was
sent on behalf of Defendant. Second, the fax sender may be
defined as the person or entity "whose goods or services
are advertised or promoted in the unsolicited
advertisement." Id. These regulations and the
case law interpreting them make clear that the question is
not who physically sent the fax, but which party benefitted
from it being sent. See id.; see also Imhoff Inv., L.L.C.
v. Alfoccino, Inc., 792 F.3d 627, 637 (6th Cir. 2015)
("The pertinent FCC regulations are explicit that the
party whose goods or services are advertised-and not the
fax broadcaster-is the sender." (emphasis added));
Senior Care Grp., Inc. v. Red Parrot Distribution,
Inc., No. 8:17-CV-760-T-27TGW, 2017 WL 3288288, at *2
(M.D. Fla. Aug. 1, 2017) ("[t]he 2008 Junk Fax Order
also explains that the sender does not need to be the
individual who actually sent the fax, only that the sender is
the benefitting party."); Bee, Denning, Inc. v.
Capital All. Grp., 310 F.R.D. 614, 620 n.2 (S.D. Cal.
2015) ("[A] company can 'send' an unsolicited
fax advertisement without directly participating in the
physical transmission of such a fax."). In other words,
while the physical sender may be a covered
"sender" for purposes of the TCPA, the mere fact of
having physically sent the fax does not make an entity a
statutorily identified "sender." Defendant presents
no authority supporting its claim that as the party that
physically transmitted the fax, Wyndham constitutes a
"sender" under the regulation. Instead, it
supports its position with two cases in which the plaintiffs
had given permission, in some form, to the sender (as defined
under the regulations) of the fax. See CE Design Ltd. v.
King Architectural Metals, Inc., 637 F.3d 721, 725-27
(7th Cir. 2011); Travel 100 Grp. Inc. v. Mediterranean
Shipping Co., 383 Ill.App.3d 149 (2008).
CE Design, the Seventh Circuit overturned the
district court's grant of class certification because the
defendants could assert a unique defense against the named
plaintiff based on the fact that it, unlike other members of
the class, had provided its fax number to a "Blue
Book" service used to facilitate industry-wide
marketing, and that subscribers to this "Blue Book"
expected and consented to receive ads by fax. 637
F.3d at 725-27 (emphasis added). Similarly, in Travel 100
Group, the court found that the plaintiff travel agency
had given express permission and invitation for
advertisements to be sent by third parties by agreeing
to the inclusion of its contact information in an
international travel agency database, with the ...