Question: In August 1999 United Artists contracted with ABF a company
In August 1999, United Artists contracted with ABF, a company in the business of distributing advertisements by fax, to send a one-page advertisement for discount movie ticket packages. The following month, ABF transmitted the advertisement to about 90,000 fax machines in the Phoenix area. United Artists received $12,080 through the ad, and paid ABF $3,375 for its services. ESI is the only recipient that complained to United Artists about receiving the advertisement. After ESI received the faxed advertisement, it filed a complaint, alleging violation of the Telephone Consumer Protection Act (TCPA), which makes it unlawful for persons within the United States to, among other things, "use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." ESI requested statutory damages of $500 per violation, with possible trebling (tripling) of those damages, and injunctive relief. ESI sought to represent a class consisting of "all persons and entities who received on a telephone facsimile machine" the particular advertisement sent by ABF for United Artists. United Artists objected to the class certification, arguing, among other things, that a class action suit could lead to liability against United Artists disproportionate to the harm caused. ESI offered to waive the statutory minimum recovery of $500 per violation and to reduce damages to $90 or, alternatively, to modify and reduce the number of the class. The trial court denied ESI's motion for certification of the class. ESI appealed the trial court's ruling. Should United Artists be required to pay for sending out its one-page fax? If you were on the court, how would you rule? Why?
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