The first posting on our Georgia Appellate Developments Blog discussed the decision of the Georgia Supreme Court in A Fast Sign Company, Inc. v. American Home Services, Inc. (posting November 29, 2012). The Georgia Court of Appeals has written the penultimate chapter in that saga with its decision in American Home Services, Inc. v. A Fast Sign Company, Inc., Case No. A11A0719 (decided July 11, 2013).
The Georgia Supreme Court had held that liability under the Telephone Consumer Protection Act of 1991 for the sending of unsolicited fax advertisements merely required a showing of the sending of the fax to someone who had not solicited it, not the actual receipt of the fax. The trial court in the case had entered a judgment for $459 million, calculating that award by multiplying the 306,000 alleged unsolicited faxes sent by $1500, the statutory amount of damages for a knowing and willful violation of the Act. In its recent decision, the Georgia Court of Appeals rejected all the remaining substantive challenges to the award, except for concluding that the damage calculation had not excluded faxes sent to the persons that had been proven to have an established business relationship with the sender. However, excluding those recipients (375 persons) likely will not lead to a substantial reduction in the amount of damages awarded.
In its opinion, the Court concluded that proving a willful violation did not require a showing that the sender knew it was violating the Act. It required only a showing that the sender knew it was sending the faxes to someone who had not solicited them.
That this judgment has, in large part, been allowed to stand shows the potential for significant liability for the sending of unsolicited fax advertisements.