United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON MOTION TO CERTIFY CLASS
(DOCKET NO. 84)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
Yaakov of Spring Valley (“Plaintiff”) brought
this putative class action against ACT, Inc.
(“Defendant”) alleging violation of the Telephone
Consumer Protection Act (“TCPA”) for faxing
unsolicited advertisements without an opt-out provision.
See 47 U.S.C. § 227. Plaintiff now moves to
certify two classes comprised of schools that received
similar faxes from Defendant. For the reasons set forth
below, Plaintiff's motion (Docket No. 84) is
Defendant is a company that provides student assessment
services. Among these services, Defendant administers the ACT
test, a college admissions exam. Approximately 1.9 million
high school students in the graduating class of 2015 took the
ACT test, from all 50 states. The test was administered at
approximately 7, 000 high schools during the 2015-2016
testing cycle. More than 29, 000 high schools in the United
States had at least one student register for the ACT during
the 2014-2015 cycle. (Docket No. 133 at 2).
of its business strategy, each year Defendant set
“volume goals” to increase sales and visibility
of the ACT. Rich Dep. 14:7-18. One of the marketing
techniques used by Defendant was fax advertising.
Id. at 35:7-36:7. Defendant administers the ACT six
times per year and in the weeks leading up to each test,
Defendant would send high schools throughout the east coast
faxes advertising the ACT registration deadline. Twiggs Dep.
35:15-36:10; 38:4-39:11. Plaintiff alleges that Defendant
obtained the fax numbers from a directory of school districts
and high schools that Defendant purchased each year called
the MDR. Id. at 41:14-43:14.
received fax advertisements from Defendant on March 5, 2012,
April 22, 2012, and May 13, 2012. Sussman Decl. ¶ 3.
Plaintiff contends that it never provided Defendant express
invitation or permission to send these fax advertisements and
that none contained an opt-out provision. Id.
Further, Defendant admits that it sent more than 10, 000
faxes that are the same or substantially similar to the
advertisements sent to Plaintiff. Def.'s Interrog.
Answers at 16-17. According to Plaintiff, Defendant's
telephone records suggest that from June 30, 2008 through
June 30, 2012, Defendant sent out more than 28, 355 fax
advertisements. See Bellin Decl. Ex. L.
argues that it has active, ongoing relationships with high
schools around the country. See McCullough Decl.
¶¶ 6-26. In fact, “[t]housands of high
schools have provided their facsimile numbers to ACT when
requesting information” from Defendant and its
“records include a fax number for more than 7, 000 high
schools that have served as ACT test centers and/or have
provided their fact number to ACT in other contexts.”
Id. ¶ 15. Defendant notes that schools
request and receive information from Defendant in numerous
ways, including by fax, mail, telephone, and email.
McCullough Decl. ¶¶ 25-26; Rich Dep. 15:3-15:10.
These communications are further described in declarations
from school officials attached to Defendant's memorandum.
See Hrasky Decl. Ex. 1. School officials assert, for
instance, that they “periodically request information
from ACT . . . . This is true now, and it has been true
throughout my employment at the School. Our School has
requested and accepted information from ACT by regular mail,
by facsimile to our School's fax machine and/or by
electronic mail.” Id. at 2. Further, the
school officials note that their schools have “ongoing
relationships . . . with ACT [and that] . . . [t]he
information we solicit and receive from ACT puts us in a
position to properly advise our students.” Id.
at 4. Finally, the school officials said that throughout
their employment, “ACT would have had permission from
me or other School personnel to send these types of
informational communications using any available type of
communication, including facsimile.” Id. at
Consumer Protection Act
Plaintiff alleges that Defendant's conduct violated the
TCPA. The TCPA prohibits certain unsolicited advertisements
sent via phone or facsimile. 47 U.S.C. § 227(b)(1).
Unsolicited advertisements are “any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any
person without that person's prior express invitation or
permission, in writing or otherwise.” Id.
§ 227(a)(5). Unsolicited advertisements, however, may be
sent if (1) the sender and recipient have “an
established business relationship, ” (2) the recipient
voluntarily provided his fax number to the sender either
directly or indirectly through “a directory,
advertisement, or site on the Internet, ” and (3) the
“unsolicited advertisement contains” an opt-out
notice meeting the requirements promulgated by the statute.
Id. § 227(b)(1)(C)(i)-(iii).
argues, however, that under the FCC's Solicited Fax Rule,
47 C.F.R. § 64.1200(a)(4)(iv), both solicited and
unsolicited faxes are subject to the “opt-out”
notice requirement of 47 U.S.C. § 227(b)(1)(C)(iii).
Therefore, Plaintiff argues that whether or not recipients
gave consent is irrelevant to this Court's
inquiry. Plaintiff argues that all faxes sent by
Defendant without an opt-out notice violate the statute.
Solicited Fax Rule, however, has been invalidated by the D.C.
Circuit. In 2006, the FCC promulgated the Solicited Fax Rule.
Thereafter, businesses and courts questioned whether the FCC
had the authority to promulgate the rule since the TCPA
seemed to contemplate only unsolicited faxes. See,
e.g., Ameriguard, Inc. v. Univ. of Kansas Med.
Center Res. Inst., 222 Fed.Appx. 530, 531 (8th Cir.
2007) (affirming dismissal because the fax did “not
constitute an ‘unsolicited advertisement.'”).
As a result, many businesses petitioned the FCC for a
declaratory ruling requesting the agency to concede that it
overreached. In 2014, however, the FCC stood by the Solicited
Fax Rule. See Order, Petitions for Declaratory
Ruling, Waiver, and/or Rulemaking Regarding the
Commision's Opt-Out Requirements for Faxes Sent with the
Recipient's Prior Express Permission, 29 F.C.C.R.
13, 998 (2014). In Bais Yaakov of Spring Valley v.
FCC, the D.C. Circuit vacated the 2014 Order and held
the Solicited Fax Rule invalid. 852 F.3d 1078, 1083 (D.C.
Cir. 2017) (“We hold that the FCC's 2006 Solicited
Fax Rule is unlawful to the extent that it requires opt-out
notices on solicited faxes.”).
Bais Yaakov, the D.C. Circuit resolved many
petitions for review that were consolidated and transferred
by the Judicial Panel on Multidistrict Litigation. See
Sandusky Wellness Ctr. V. ASD Specialty Healthcare, 863
F.3d 460, 467 (6th Cir. 2017) (describing the procedural
history of Bais Yaakov). When the Multidistrict
Litigation Panel consolidated the challenges to the FCC's
regulation and transferred them to the D.C. Circuit, that
court became “the sole forum for addressing . . . the
validity of the FCC's rule[ ].” Peck v.
Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir.
2008) (quoting MCI Telecomms. Corp. v. U.S. West
Comms., 204 F.3d 1262, 1267 (9th Cir. 2000)). As a
result, the decision of that court is binding precedent on
all circuits. True Health Chiropractic Inc. v. McKesson
Corp., 896 F.3d 923, 930 (9th Cir. 2018). Thus, this
Court is bound by the D.C. Circuit's holding and
Defendant is only liable under the TCPA insofar as it send
unsolicited faxes without an opt-out provision.
Plaintiff seeks to certify two classes. Class A comprises
“[a]ll persons in the United States from July 30, 2008
through July 30, 2012 to whom Defendant sent or caused to be
sent an unsolicited facsimile advertisement, advertising the
commercial availability or quality of any property, goods, or
services, which contained no opt-out notice.” (Docket
No. 87 at 6). Class B includes “[a]ll persons in the
United States from July 30, 2008 through July 30, 2012 to
whom Defendant sent or caused to be sent a facsimile