We have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA. Id. at 1254.

As we have previously reported, the FCC’s letter brief (and now Sarris) appear to be inconsistent with the FCC’s position in the voice call context, where it has ruled that a “seller” of goods or services is not directly liable for calls made by a “telemarketer” on its behalf, and instead the seller’s possible vicarious liability turns on the application of federal common law agency principles. See In re Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574 (2013) (“Dish Network”) (limiting direct liability to “telemarketers” that “initiate” calls and applying agency principles to determine vicarious liability of “sellers” for calls made on their behalf). Notwithstanding this apparent divide, district courts within the Eleventh Circuit have followed Sarris (granted, they must). See, e.g., Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, No. 12-22330-CIV, 2015 WL 1257983, at *1 (S.D. Fla. Mar. 18, 2015).

The reach of Sarris has extended beyond the Eleventh Circuit, on two occasions thus far. The first was a decision from the District of Minnesota. See Bais Yaakov v. Varitronics, LLC, No. CIV. 14-5008 ADM/FLN, 2015 WL 1529279, at *5 (D. Minn. Apr. 3, 2015) (citing Sarris and noting “a plaintiff is not required to establish vicarious liability … when a third party sends the unsolicited fax advertisements”). More recently, the Northern District of Illinois applied the Sarris court’s broad definition of “sender” and denied a defendant’s motion to dismiss. See Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc., No. 14 CV 10127, 2015 WL 2330197 (N.D. Ill. May 14, 2015) (“Darden”).