Michelle Hammond brought a class action lawsuit against Carnett’s, Inc. alleging that Carnett’s violated the Telephone Consumer Protection Act TCPA1 when its agent faxed 73,500 unsolicited advertisements to Atlanta area residents. The issue before us is whether the Court of Appeals correctly held that the trial court abused its discretion in denying Hammond’s motion for class certification.2 Because individual questions of law and fact predominate over whether a recipient’s fax was “unsolicited,” and thus whether each recipient is properly part of the class, the trial court did not err in denying class certification and the Court of Appeals’s decision must be reversed. 1. The TCPA prohibits “using any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.”3 In April 2002, Carnett’s, an Atlanta area car wash company, hired Sunbelt Communications and Marketing, LLC to fax advertisements for discount car washes to Atlanta area residents. On September 20, 2002, Hammond, a fax recipient, filed suit against Carnett’s for violation of the TCPA.4 She sought to certify a class consisting of all fax recipients who had not asked to be added to Carnett’s or Sunbelt’s distribution lists. On April 29, 2003, the trial court denied Hammond’s motion for class certification, reasoning that whether each class member received an “unsolicited” fax would require individual inquiry. On March 12, 2004, the Court of Appeals reversed, and we granted certiorari.
2. As a preliminary matter, we agree with the Court of Appeals’s ruling in Hooters of Augusta, Inc. v. Nicholson 5 that the TCPA reaches purely intrastate communications and provides a private right of action in state court unless prohibited by state law. As the Court of Appeals has also recognized, these private actions may be brought as class actions where the requirements of OCGA § 9-11-23 are met.6 These requirements are: 1 numerosity —that the class is so numerous as to make it impracticable to bring all members before the court; 2 commonality —that there are questions of law and fact common to the class members that predominate over any individual questions; 3 typicality —that the claim of the named plaintiff is typical of the claims of the class members; 4 adequacy of representation —that the named plaintiff will adequately represent the special interest of the class; and 5 superiority —that a class action is superior to other methods of fairly and efficiently adjudicating the controversy.7 Although all of these requirements are important to consider, this case turns on the commonality requirement. The question answered by the Court of Appeals, and which is now before us, is whether the trial court abused its discretion in concluding that the commonality requirement was not met.
