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Click here for the full text of this decision FACTS: Autoflex Leasing, an auto leasing company, sued a competitor, Manufacturers Auto Leasing, under the Telephone Consumer Protection Act for sending 85 unsolicited fax advertisements to Autoflex. The trial court granted Autoflex’s summary judgment motion on all issues except whether Manufacturers had acted willfully or knowingly. A trial was held on that issue, and the trial court ruled for Autoflex, awarding them enhanced damages. On appeal, Manufacturers argues that TCPA does not apply to intrastate faxes; that Manufacturers did not act willfully or knowingly; that Autoflex did not mitigate its damages; and that the trial court erred in ordering prejudgment interest. HOLDING: Affirmed. The court cites a string of Texas state appellate and federal district court decisions that have held that the TCPA, which makes it “unlawful for any person within the United States to use any telephone facsimile machine, computer, or any other device to send an unsolicited advertisement to a telephone facsimile machine,” covers unsolicited intrastate fax ads. Manufacturers violated the TCPA 85 times by sending 85 unsolicited fax ads. The court explains that enhanced damages under the TCPA may be awarded if a trial court finds the defendant “willfully or knowingly” violated the act. Manufacturers suggests that the standard from the Business & Commerce Code, relating to knowing or intentional conduct, be used, but the court finds no authority for ignoring the language of the TCPA statute. A defendant thus willfully or knowingly violates the TCPA when the defendant knows of the act’s prohibitions, knows he doesn’t have permission to send a fax ad, and sends it anyway. The court then determines that the evidence supports the finding of willful and knowing conduct: that Autoflex’s president called Manufacturers’ president to tell him that unsolicited fax advertisements violated the TCPA; that despite knowing about the act’s prohibitions, Manufacturers’ president continued to send the fax ads pursuant to advice of its counsel; that no one at Manufacturers sought Autoflex’s permission; and that the 85 fax ads were approved by Manufacturers for use. Despite Manufacturers’ argument that Autoflex should have called Manufacturers to stop the fax ads if it didn’t want them, the court finds no authority for that argument. As the TCPA makes even one unsolicited fax a violation, there was no duty for Autoflex to contact Manufacturers to make them stop. Furthermore, a directive from the Federal Communications Commission specifically states that the recipient of an unsolicited fax ad is not required to contact the sender. The court upholds the award of prejudgment interest, as well. OPINION: McCoy, J.; Livingston, Dauphinot and McCoy, JJ.

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