4th Circuit Denies Class Certification in TCPA Fax Case

The U.S. Court of Appeals for the Fourth Circuit affirmed denial of class certification in a Telephone Consumer Protection Act (TCPA) case involving unsolicited faxes, since the class members who were eligible for a recovery were not ascertainable.

The plaintiff received an unsolicited fax from the defendant advertising the defendant’s business services.  The plaintiff filed a class action under the TCPA on behalf of itself and approximately 59,000 other recipients of the unsolicited fax, claiming that the fax violated TCPA prohibitions related to unsolicited business communications sent to a “telephone facsimile machine.”  As the case proceeded, the parties determined that some potential class members received the fax on traditional fax machines which print out a paper copy of the fax, while others received the fax through online fax services which deliver the fax to the recipient’s computer in the form of an image file attached to an email.

A prior, controlling FCC interpretational ruling held that faxes sent to recipients who use an online fax service do not count as having been sent to a “telephone facsimile machine” as that term is defined under the TCPA.  In turn, potential class members who received the fax through an online fax service would not be eligible for a recovery under the TCPA.

The Court noted that Federal Rule of Civil Procedure 23—which governs certification of class actions—contains an implicit threshold requirement that the members of a proposed class must be readily identifiable, also referred to as “ascertainability.”  However, there was no ready way to determine on a class-wide basis which of the potential class members received the fax on a traditional fax machine versus though an online fax service.  Accordingly, the class was not ascertainable and could not be certified.