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Click here for the full text of this decision FACTS: This is an interlocutory appeal from an order granting class certification. This case arises from allegations that Suggs & Associates received unsolicited telecopy or fax advertisements from American Blast Fax Inc. (ABF) advertising properties owned or managed by Apartment Investment and Management Co. (AIMCO), in violation of the Telephone Consumer Protection Act, 47 U.S.C.A. �227 (West 2001). Suggs sought statutory damages and requested that the trial court certify the suit as a class action. The trial court certified a class under Texas Rule of Civil Procedure 42(b)(2) and (b)(4). AIMCO appeals. HOLDING: Reversed and remanded. The proposed class includes a list of over 112,000 telephone numbers, not names of persons. There is no evidence in the record of any information, such as name or address, identifying any person as the “holder” of any telephone number on the log. Nothing in the record suggests how the identity of a “holder” is to be determined. The only evidence in the record regarding the potential connection of the identity of a person with a telephone number is from AIMCO. AIMCO produced evidence showing the rate at which telephone numbers in Texas are disconnected and taken out of service. According to this evidence, about 6.5 million telephone numbers were disconnected in Texas between the date of the first alleged fax advertisement in 2001 and the class certification hearing in December 2002. Further, the evidence reflects that some disconnected telephone numbers are held out of service and then reassigned to different subscribers. Accordingly, AIMCO’s evidence shows some proof that the ownership of telephone numbers on the logs is not fixed, but transient. AIMCO argues that the current holder of any telephone number on the list of over 112,000 may not be the same as the holder of that telephone number on the date the ABF log shows a fax was sent. There is nothing in the record showing that it is possible, much less administratively feasible, to ascertain the identity of the class members from the voluminous list of telephone numbers generated by the ABF daily fax confirmation logs. The ABF daily fax confirmation logs are the source of more than 112,000 telephone fax numbers which Suggs claims constitute the class membership. However, this list of telephone numbers is simply a collection of data. There is nothing in the record that suggests the identity of any one class member by name can be ascertained. The difficulty of ascertaining the identity of the holder of each telephone number raises grave concerns about whether adequate notice can be supplied to the class members. The sufficiency of a definition of a class rests upon, in part, and is intertwined with, the notice the court is to direct to each class member. Suggs has proposed “faxing” notice to the telephone numbers on the logs. However, there is no evidence in the record that this method is calculated to provide notice to class members for their interests to be protected. The only evidence in the record suggests that the telephone numbers on the logs may be transient. There is no factual basis in the record to support the claim that a fax “notice,” which might be sent to the number on the logs, would be calculated to be received by the putative class member, i.e., the actual holder of that number on the relevant dates. Further, there is nothing in the record to show that notice by publication would provide adequate notice to those telephone number holders whose identity may not be ascertainable by any means. This dilemma is comparable to that faced by the court in Commander Properties Corp. v. Beech Aircraft Corp., 164 F.R.D. 529 (D. Kan. 1995), where the court concluded that the entire chain of title of an aircraft must be reviewed to ascertain membership in the class. Here, the ownership history of each of the more than 112,000 telephone numbers on the fax logs may have to be searched to ascertain the identity of the class members and accomplish transmission of notice. Yet, there is no evidence in the record that such a complete database of ownership history exists. OPINION: Lang, J.; Moseley, FitzGerald and Lang, JJ.

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