In A Fast Sign Co., Inc. v. American Home Services, Inc., — S.E.2d —-, 2012 WL 5381254 (Ga. 2012), the Georgia Supreme Court found that the TCPA liability derives from the number of attempts (fax) not the number of received faxes. At the conclusion of a bench trial, the trial court had found that AHS violated the TCPA because it admitted that it had sent 306,000 unsolicited facsimile advertisements. Finding that violation of the TCPA was wilful and knowing, the trial court awarded the class $459 million in damages, or the amount of $1,500 for each fax sent. The trial court declined to award punitive damages and attorney’s fees. AHS appealed the ruling to the Court of Appeals. The Court of Appeals vacated the trial court’s judgment and remanded the case, finding that the trial court erroneously applied the TCPA by basing liability and damages on the number of unsolicited advertisements sent rather than the number of unsolicited advertisements received by class members. The Supreme Court reversed, finding that the TCPA applied to attempts, not receipts.
While persons or entities who actually receive unsolicited advertisements via their fax machines may certainly state a claim under 47 U.S.C. § 227(b)(3)(B), persons or entities who are intended recipients, or who are targeted to receive unsolicited advertisements via their fax machines, may also have a cause of action. ¶ The reality that some plaintiffs may not have received the unlawful fax transmissions does not defeat their entitlement to damages. Although the harm resulting from unsolicited fax transmissions is often described in terms of recipients, the harm also extends to intended recipients, or targets of mass fax advertising. For example, a business may have considered it necessary to turn off its fax machine because of unwanted fax transmissions. The business might not have received the advertising, but it would still have incurred a disadvantage as a result of advertisers sending the fax messages….[T]he legislation expressly using the word “send” is to be construed to mean “send” and not “receive.” ¶ Critchfield Physical Therapy, supra, 293 Kan. at 298. Alternatively stated, a sender is liable for the unsolicited advertisements it attempts to send to fax machines, whether or not the transmission is com-pleted or received by the targeted recipient. Id. at 299. Indeed, requiring receipt to state a cause of action under the TCPA would create a limitation not contemplated by Congress. Cf. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 21 F.C.C.R. 3787(56) (FCC 2006). Accordingly, the Court of Appeal’s reliance on Carnett’s was misplaced. The other cases relied upon by the Court of Appeals likewise do not turn on the construction and interpretation of the language of 47 U.S.C. § 227(b)(1)(C) or 47 U.S.C. § 227(b)(3)(B) and so we do not find those cases to be persuasive authority. Therefore, the judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for the resolution of the remaining enumerations of error that it did not address.