In Gorss Motels, Inc. v. Safemark Systems, L.P. two companies, Gorss and E&G, are franchisees of Wyndham Hotel Group properties. According to the franchise agreement, Wyndham and affiliates agreed to offer franchisee assistance in purchasing items for the hotels. Fax numbers were explicitly included in these agreements as a method of contact. Safemark, a company that provides safes to Wyndham franchisees, sent two faxes to Gorss, E&G, and over 7,000 other recipients. These faxes failed to provide opt-out instructions for anyone wishing not to receive similar communications in the future. Gorss and E&G filed a lawsuit alleging TCPA violations and sought to certify two classes for the two faxes.
After denying class certification, the District Court granted summary judgment in favor of Safemark, affirming that Safemark had sufficient permission to send the unsolicited faxes. The franchise agreement clearly provided permission to send faxes about items for purchase to be used within the plaintiffs’ hotels, and the District Court decided that opt-out instructions were not required. The Eleventh Circuit affirmed.
The Solicited Fax Rule
Formerly, the “solicited fax rule” required opt-out instructions to be included with “solicited” faxes. Those who failed to include compliant “opt-out” language with solicited faxes remained subject to a $500 fine. After a different District Court ruled that the solicited fax rule was unlawful because it went beyond the FCC’s authority to regulate such matters, the FCC eliminated the solicited-fax rule during the pendency of Safemark’s appeal. Further, the Eleventh Circuit held that the elimination of the solicited fax rule applied retroactively since “the Commission has eliminated the rule and has unambiguously abated liability for any past violations of its requirements.”
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