Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC

Dist. Ct. did not err in granting plaintiff’s motion for summary judgment in plaintiff-class action alleging that defendants violated Telephone Consumer Protection Act (TCPA) by sending fax advertisement to 11,422 different numbers from recently acquired customer list without having obtained customers’ permission to do so. Defendants conceded that fax was advertisement that lacked any disclaimer explaining how to opt out of future faxes, and thus defendants could not rely on safe-harbor provisions of TCPA to avoid liability. Moreover, defendants could not avoid liability based on prior express permission send fax advertisements, where affidavits from customers on list stated only that it generally gave permission to seller of customer list to send fax advertisements, that said customers would have given permission to send fax advertisements, or that customers had agreed to receive product information from seller of customer list, since defendants needed to show that permission to send fax advertisements was given prior to sending of fax. Ct. further found that seller of customer list could not transfer to another entity any customer permission to send fax advertisements. Also, Dist. Ct. could properly calculate statutory damages without conducting evidentiary hearing where, as here, there was no dispute with respect to number of fax advertisements sent by defendants.