AMP Automotive, LLC v. B F T, LP

Filing 118

ORDER denying 113 Motion for Summary Judgment. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMP AUTOMOTIVE, LLC

CIVIL ACTION

VERSUS

NO. 17-5667

B F T, LP d/b/a GREAT AMERICAN BUSINESS
PRODUCTS

SECTION A(5)

ORDER AND REASONS
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
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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
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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.”

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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. 1131, 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 sender must obtain and
retain records when permission is given orally. (Id. at 6). AMP argues that because Great
American has not furnished explicit records, Great American did not obtain prior express
permission from any of its recipients, including Marshall Bros. Lincoln. (Id. at 9).
Great American contends that the fax advertisements were solicited because the faxes
sent to the number reassigned to AMP were directed in fact to Marshall Bros. Lincoln. (Rec.
Doc. 114, p. 6). Great American argues that when a fax recipient has previously provided a fax
number, the fax advertisements are not considered unsolicited. (Id. at 7). Great American cites an
Eastern District decision rendered by Judge Sarah Vance to also assert that in a TCPA case
involving text messages, prior express consent is substantially less burdensome than showing

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prior express written consent. (Id. at 9). Great American asserts that a genuine issue of material
fact exists as to whether Great American has met the low bar for prior express consent. (Id. at
10).
The FCC establishes rules implementing the TCPA and the Junk Fax Prevention Act.
Regarding telephone subscribers, the FCC provides that “any telephone subscriber who releases
his or her telephone number has, in effect, given prior express consent to be called by the entity
to which the number was released.” In the Matter of Rules and Regulations Implementing the
Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1833 n.20 (2012)(citing In the Matter of
Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. 8752, 8769
(1992)). The Court finds this instructive as to how to define consent in the instant matter as there
is a void of any controlling caselaw and any provisions specific to fax numbers.
It does not appear disputed that Great American never obtained prior express consent
from AMP. De La Riva testified in her deposition that she never obtained prior express consent
from AMP because Great American never sent faxes to AMP; rather, Great American faxed
Marshall Bros. Lincoln at a number she now knows is owned by AMP. (Rec. Doc. 113-3, p. 1).
De La Riva also testified in the affirmative when asked “the only way you obtain a fax number is
when someone calls in for an order and then you ask them if they would provide you with a fax
number.” (Rec. Doc. 113-3, p. 3). In her deposition, De La Riva referred to an exhibit which
indicated that the number now owned by AMP is listed in Great American’s records as
belonging to Marshal Bros. Lincoln. (Rec. Doc. 114-1, 8).
Regardless of whether there was express prior consent from Marshall Bros. Lincoln, the
Court declines to grant summary judgment. The FCC establishes that “the TCPA requires the
consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber

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customary user of the phone) and that caller best practices can facilitate detection of
reassignments before calls.” In the Matter of Rules and Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7999-8000 (2015). Callers who make a call
without knowledge of a reassignment are afforded one call to gain actual knowledge or
constructive knowledge that the phone number has been reassigned. Id. at 8000. The FCC
interpreted “prior express consent” to mean “reasonable reliance” subject to the one-call
threshold because the caller bears the risk that the call was made without prior express consent.
Id. at 8010 n.312. The Court recognizes that fax numbers and telephone numbers are not the
same; however, the FCC provision is relevant to the general inquiry of reassigned numbers. The
Court concludes that a reasonable juror could find that Marshall Bros. Lincoln gave express prior
consent and that Great American reasonably relied upon that consent. The Motion for Summary
Judgment is denied because a genuine issue of material fact exists as to whether Great American
is entitled to the defense of consent.
IV.

Conclusion
Accordingly;
IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Rec. Doc. 113) is

DENIED;
New Orleans, Louisiana, this 28th day of March, 2019.

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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