McGarry v. Cingular Wireless LLC

Plaintiff failed to show that she is a member of the defined class-individuals who received unsolicited faxes from defendant's agents.

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Jennifer McGarry appeals from the trial court’s denial of her motion for class certification in the lawsuit she filed against Cingular Wireless, LLC, alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227. McGarry sought to certify a class of individuals who had received unsolicited faxes advertising Cingular’s cellular telephone services. Cingular is a limited liability company headquartered in Atlanta. McGarry is a Cingular customer residing in Palm Beach County, Florida. Under a “Semi-Non-Exclusive Authorized Distributorship Agreement,” Cingular authorized American Cellular, Inc. to offer Cingular’s services to consumers in the West Palm Beach-Boca Raton, Florida area. Under this agreement, Cingular authorized American Cellular to use the Cingular name, trademarks and logos to market and sell such services.

In that regard, American Cellular engaged Fax.com, Inc., a fax broadcasting company located in California, to disseminate advertisements offering Cingular’s services to facsimile machines located in the 305, 561 and 954 area codes between August 22, 2001 and November 14, 2001. American Cellular’s November 14, 2001 order to Fax.com requested 200,000 facsimile advertisements promoting services from three companies, Cingular, Voicestream Wireless, and Sprint, to be disseminated at a rate of 10,000 per day, five days per week to facsimile machines in the 561 and 954 area codes in Florida. McGarry received a facsimile advertisement matching this description at her residence in the 561 area code in Delray Beach, Florida, approximately one week later. In addition to advertising the three wireless phone companies, the fax listed American Cellular’s name and number, and had a notation indicating that it was sent from a particular number in the 561 area code.

McGarry v. Cingular Wireless LLC

Plaintiff failed to show that she is a member of the defined class-individuals who received unsolicited faxes from defendant's agents.

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