ROBERT W. GETTLEMAN, District Judge.
Plaintiff Grind Lap Services, Inc. filed a three-count putative class action complaint against defendants UBM LLC ("UBM") and 12 John Does, alleging that defendants violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Count I), unlawfully converted plaintiff's fax machine, toner, and paper (Count II), and violated the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/2 (Count III), by sending plaintiff a one-page fax. Defendant UBM has filed the instant motion for summary judgment pursuant to Fed. R. Civ. P. 56, contending that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. For the reasons discussed below, UBM's motion for summary judgment is granted.
EDN magazine was an engineering trade publication produced by defendant UBM or one of its affiliates. The print edition of the magazine was available for free on a reader-requested basis. On June 15, 2010, one of UBM's outside vendors telephoned plaintiff and spoke with plaintiff's corporate secretary, offering a free EDN subscription to Brian Gallichio.
During the call, plaintiff's secretary represented that she was authorized to "get" a free subscription for Gallichio, and signed him up for the print version of the magazine. The secretary specified that the print subscription of EDN should be sent to plaintiff's address at 1045 West National Avenue in Addison, Illinois, and provided the vendor with plaintiff's phone number, fax number, and Gallichio's business email address. The secretary also confirmed that plaintiff is "a type of engineering company," and answered a number of questions about plaintiff's business. Following this telephone conversation, EDN magazine was mailed to plaintiff's address twice monthly from June 2010 through March 2012.
On March 21, 2012, UBM sent a one-page fax to plaintiff entitled "Urgent Renewal Request." The fax is directed to Gallichio at plaintiff's name and address and contains an account number, the fax number provided by plaintiff's secretary, and EDN's name and address. The fax requests that the recipient "[p]lease update any changes" to its address and fax number. The fax states that, "For your convenience we have set up a personalized web page just for you, so that you can renew your EDN subscription online — now. Simply go to the page at: www.ezrenew.net.edn/BGALLICHIO." The fax also states that the recipient can "complete the form below today, sign and date and fax this order form back to 1-866-279-5883." Below this statement, the recipient can check a box, indicating either, "Yes, I wish to receive/continue to receive EDN" or "No." The bottom portion of the form includes five questions about the recipient's business, such as "For which industries do you perform design and development engineering functions?" The fax also asks the recipient to indicate whether it wanted EDN in "digital," "print," or "both" forms.
A movant is entitled to summary judgment pursuant to Fed. R. Civ. P. 56 when the moving papers and affidavits show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
UBM argues that it is entitled to summary judgment because there is no issue of material fact as to whether the fax it sent plaintiff is an "unsolicited advertisement." According to UBM, the record establishes that the fax is not an "unsolicited advertisement," but instead is a "subscription renewal notice — a communication expressly permitted by the Federal Communications Commission (the `Commission')," and therefore does not run afoul of the TCPA. UBM contends that "[i]n a final order construing the term `unsolicited advertisement,' the Commission . . . concluded that transactional communications, including subscription renewal notices, are not advertisements." UBM argues that because plaintiff was a "current subscriber" to EDN and had "affirmatively subscribed to the publication," the fax at issue is a "transactional communication," not an unsolicited advertisement. The Commission's order, UBM asserts, is binding on this court.
UBM also contends that because the fax is not an advertisement, and therefore did not violate the TCPA, plaintiff's conversion and ICFA claims must also fail. According to UBM, there was no wrongful deprivation of plaintiff's right to possession of its fax machine because the fax was lawfully sent under the TCPA. Similarly, UBM argues that a lawfully sent subscription renewal request does not offend public policy and is not "immoral, unethical, oppressive, or unscrupulous" in violation of the ICFA.
Plaintiff argues that the Commission's order relied on by UBM is inapplicable because its discussion of transactional communications is not "tethered to statutory language in the TCPA," and therefore, under
The TCPA prohibits the use of "any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement." 47 U.S.C. § 227(b)(1)(C). The statute creates a private right of action whereby the recipient of an unsolicited fax may bring an action to "recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(b)(3)(B). A successful TCPA claim requires a plaintiff to establish that the defendant: "(1) used a telephone facsimile machine, computer or other device to send a facsimile; (2) the facsimile was unsolicited; and (3) the facsimile constituted an advertisement."
Contrary to plaintiff's arguments, final orders promulgated by the Commission are binding on this court pursuant to the Administrative Orders Review Act (the "Hobbs Act"), 28 U.S.C. § 2342(1).
According to an order issued by the Commission, "messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements for purposes of the TCPA's facsimile advertising rules."
There is no genuine issue of material fact that the fax at issue here is a subscription renewal request, and not an unsolicited advertisement. As described above, the fax is titled "Urgent Renewal Request," and asks the recipient to indicate, in one of two ways, whether it/he would like to continue receiving a subscription to EDN magazine. The record establishes that plaintiff was a current subscriber to the magazine at the time the fax was sent and had affirmatively subscribed to the magazine through the consent of its corporate secretary. In fact, the fax contains an account number associated with plaintiff's subscription, through which plaintiff had received the magazine twice a month for almost two years. The fact that the magazine was free does not alter the transactional nature of the communication given plaintiff's earlier agreement to receive the magazine.
Similarly, the five questions about plaintiff's business included in the fax do not transform it into an unsolicited advertisement. The Commission has articulated that an unsolicited advertisement is material that "advertises the commercial availability or quality of any property, goods, or services, even if the message purports to be conducting a survey."
Because the fax at issue was not sent in violation of the TCPA, plaintiff's conversion and ICFA claims also fail. Under Illinois common law, a plaintiff who seeks to state a claim for conversion must allege: "(1) an unauthorized and wrongful assumption of control, dominion, or ownership by defendant over plaintiff's personalty; (2) plaintiff's right in the property; (3) plaintiff's right to the immediate possession of the property, absolutely and unconditionally; and (4) a demand for possession of the property."
For the foregoing reasons, the court grants UBM's motion for summary judgment, and enters judgment in favor of defendant UBM, and against plaintiff Grind Lap Services, Inc.