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AMP Automotive, LLC v. B F T, LP

United States District Court, E.D. Louisiana

March 28, 2019

AMP AUTOMOTIVE, LLC
v.
B F T, LP d/b/a GREAT AMERICAN BUSINESS PRODUCTS

         SECTION A(5)

          ORDER AND REASONS

          JAY C. ZAINEY JUDGE UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Summary Judgment (Rec. Doc. 113) filed by Plaintiff AMP Automotive, LLC (“AMP”). Defendant B F T, LP d/b/a GREAT AMERICAN BUSINESS PRODUCTS (“Great American”) opposes this motion (Rec. Doc. 114). The motion, set for submission on March 20, 2019, is before the Court on the briefs without oral argument. This case is set to be tried to a jury on May 28, 2019. Having considered the motion and memoranda of counsel, the record, and the applicable law, the Court finds that the Plaintiff's motion should be DENIED for the reasons set forth below.

         I. Background

         Plaintiff AMP alleges that Defendant Great American violated the Telephone Consumer Protection Act (“TCPA”) by sending unsolicited faxes advertising Great American products and services. (Rec. Doc. 1). In 1991, Congress passed the Telephone Consumer Protection Act. See Pub. L. No. 102-243, 105 Stat. 2394 (codified as amended at 47 U.S.C. § 227). Thereafter, in 2005, Congress passed the Junk Fax Prevention Act, which amended the 1991 TCPA. See Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227). For simplicity, the Court will refer to the combined and amended legislation as “the Act.” Bais Yaakov of Spring Valley v. Federal Communications Commission, 852 F.3d 1078, 1080 (D.C. Cir. 2017). The Act makes it unlawful to use a fax machine to send an unsolicited advertisement. 47 U.S.C. § 227(b)(1)(C). It also provides a private right of action, which permits any “person or entity” to bring an action seeking (1) to enjoin a violation of the Act, (2) to recover for actual monetary loss from such a violation or to receive statutory damages of $500 per violation, whichever is greater, or (3) to pursue both injunctive and monetary relief. 47 U.S.C. § 227(b)(3).

         AMP categorizes Great American's actions as a “Junk Fax Campaign.” (Rec. Doc. 1, p. 4). AMP alleges that Great American “blasted thousands of junk faxes” in direct violation of the Act and the regulations promulgated under the Act by the FCC. (Rec. Doc. 1, p. 4, ¶ 11). AMP specifically provides fifteen allegedly unsolicited faxes that were sent as advertisements from Great American to AMP. (Rec. Doc. 1-1, Exhibits 1-15). AMP seeks statutory damages of $500 for each violation of the Act, trebling of damages if the Court finds fit, and injunctive relief prohibiting Great American from continuing to send allegedly non-compliant fax advertisements. Id. at 11-12; see also 47 U.S.C. § 227(b)(3).

         On August 23, 2018, this Court granted Plaintiff's Motion for Partial Summary Judgment on Great American's established business relationship defense because the faxes did not have the requisite opt-out notice. (Rec. Doc. 88). Accordingly, Great American retains only one defense, the faxes were not in fact solicited because of consent. AMP now moves this Court to grant summary judgment on Great American's consent defense as the only remaining defense. In its Answer, Defendant asserts the following consent defense:

Defendant asserts that Plaintiff, and/or Plaintiff's predecessor in interest, consented to receive communications from Defendant and never revoked such consent.

(Rec. Doc. 26, p. 5).

         II. Legal Standard

         Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” when viewed in the light most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the moving party has initially shown “that there is an absence of evidence to support the non-moving party's cause, ” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.1993)).

         III. Discussion

         The Act makes it unlawful to use a fax machine to send an unsolicited advertisement. 47 U.S.C. § 227(b)(1)(C). The term “unsolicited advertisement” means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise. 47 U.S.C. § 227(a)(5). An unsolicited advertisement does not violate the Act if the sender can demonstrate that “(1) the sender has an established business relationship with the recipient; (2) the sender obtained the recipient's fax number either through a voluntary communication between the two or through a public source on which the recipient voluntarily made the number available; and (3) the fax has an opt-out notice meeting the requirements of the statute.” Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F.Supp.3d 482, 494 (W.D. Mich. 2014), as amended (Jan. 12, 2015) (citing 47 U.S.C. § 227(b)(1)(C)).

         AMP argues that there exists no genuine issue of material fact that Great American failed to obtain express permission or invitation prior to sending the fax advertisement. (Rec. Doc. 113-1, p. 3). AMP also asserts that this Court should grant summary judgment because Great American fails to satisfy a defense for consent. (Id.). AMP cites the FCC to assert that the defendant carries the burden to demonstrate the existence of prior express permission by clear and convincing evidence. (Id. at 4). AMP cites the deposition of Great American's designated representative, Barbra De La Riva, to assert that prior express permission was never obtained from AMP (Id. at 7). AMP also cites the deposition of Great Americans' call center trainer, Down Coffman, to assert that the call center never received express permission to send fax advertisements because the call center didn't inform customers why Great American requested customers to provide fax numbers, and Great American failed to keep contemporaneous records. (Id. at 8). AMP cites Illinois District Court caselaw to assert that the ...


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