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American Home Servs. Inc. v. A Fast Sign Co. Inc.

The trial court properly based liability and damages in a class action suit regarding unsolicited fax advertisements on the number of such advertisements sent rather than the number received.

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This is an appeal from the judgment entered in class action litigation involving the Telephone Consumer Protection Act of 1991, 47 USC § 227 “TCPA”. In October 2003, A Fast Sign Company, Inc. d/b/a Fastsigns “Fastsigns” filed a class action complaint against American Home Services, Inc. “AHS”, alleging that AHS had violated the TCPA by sending unsolicited facsimile advertisements to fax machines. The trial court certified the proposed class, and we affirmed that certification. American Home Svcs. v. A Fast Sign Co., 287 Ga. App. 161 651 SE2d 119 2007.

The trial court then granted partial summary judgment to Fastsigns. The court found that the evidence was undisputed that AHS contracted with Sunbelt Communications, Inc. to send 318,000 fax advertisements to fax machines belonging to businesses and individuals throughout metro Atlanta. The court found that AHS sent six particular faxes that were actually received, but that whether AHS sent other faxes was an issue of fact. It held that AHS’s violation of the TCPA was willful and knowing. It also held that the businesses with which AHS had an established business relationship, which can be a defense to allegations of a TCPA violation, had been removed from the class, so that the established business relationship defense was not in issue. Finally, the court held that the class was entitled to an award of attorney fees, the amount of which would be determined later.

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