United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY JUDGE UNITED STATES DISTRICT JUDGE
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.
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.
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).
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
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).
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)).
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. §
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 ...