On May 11, 2023, US District Court, M.D. Florida found a Telephone Consumer Protection Act (“TCPA”) violation can occur even where the intended human recipient of a fax did not print and review the fax or did not know that the fax was sent to him. 

Plaintiff Scoma Chiropractic sued defendants National Spine and Pain Centers and Pain Management Consultants of Southwest Florida alleging TCPA violations as to junk faxes it claims to have received from Defendants on April 2, 2020, April 16, 2020, April 21, 2020, and June 9, 2020. The case was before the US District Court, M.D. Florida on Plaintiff’s motion for summary judgment. Plaintiff argued that all four of these faxes met the elements of a TCPA violation. Defendants argued that there is a genuine dispute of material fact as to whether any of the three disputed faxes were received by plaintiff and because plaintiff never received the fax, it could not have suffered an injury in fact and thus, had failed to establish Article III standing.

In reaching its decision, the Court found the plain and ordinary language of the TCPA's phrase “to send” merely requires that the facsimile be moved or conveyed from the originator's telephone facsimile machine, computer, or other device to another's telephone facsimile machine.  There was not requirement that the unsolicited fax was received.  Thus, the Court held that where Plaintiff presented evidence establishing that defendants sent the unsolicited faxed advertisements, which were not sent based on an established business relationship, and which lacked the required notice described in 47 U.S.C. § 227(2)(D), Plaintiff established a violation of its rights under the TCPA and thus established Article III standing. 

Plaintiff’s motion for summary judgment was granted as to the two faxes in question and denied as to the remaining two, where a question of fact remains regarding the accuracy of the transmission status data of the faxes. 

SCOMA CHIROPRACTIC, P.A., individually & as the representative of a class of similarly-situated persons, v. NATIONAL SPINE AND PAIN CENTERS, LLC, SPINE CENTER OF FL, LLC, & PAIN MANAGEMENT CONSULTANTS OF SOUTHWEST FLORIDA, P.L., No. 2:20-CV-430-JLB-NPM, 2023 WL 3390603 (M.D. Fla. May 11, 2023).