ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE.

INTRODUCTION

In its first amended class action complaint filed January 31, 2018, against the Defendant, Amedisys Holding, LLC ("Amedisys"), the Plaintiff, Advanced Rehab and Medical, P.C. ("Advanced Rehab"), individually and as the representative of a class of similarly-situated persons,1 alleged violation of the Telephone Consumer Protection Act of 1991 ("TCPA"), as amended by the Junk Fax Prevention Act of 2005 ("JFPA"), 47 U.S.C. § 227 (collectively, the "Act"). (Docket Entry ("D.E.") 32.) Before the Court is the motion of the Defendant for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (D.E. 43.)

UNDISPUTED MATERIAL FACTS

The following material facts are undisputed for purposes of summary judgment. Amedisys, a provider of home health care and hospice services, received referrals from physicians and health care clinics who determined their patients were in need of such care. In an effort to facilitate those referrals, Defendant routinely sent facsimile transmissions to health care providers from whom it had received prior referrals.

The transmissions at issue in the amended pleading contained an "opt-out" notice (the "Opt-Out Notice" or "Notice") which read as follows:

(D.E. 43-1, Aff. of Lauren Cutrer2 ¶ 9, at PageID 228.) The Opt-Out Notice appeared at the bottom of each page next to a graphic of a check box.

STANDARD OF REVIEW

Rule 56 provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any 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 where there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Lang v. City of Kalamazoo, ___ F. App'x ___, ___, 2018 WL 3737981, at *2 (6th Cir. Aug. 6, 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted). In ruling on such motions, the court is to "draw all inferences in the light most favorable to the nonmoving party." Rogers v. Henry Ford Health Sys., 897 F.3d 763, 771, 2018 WL 3629057, at *5 (6th Cir. July 31, 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). "The nonmovant must present specific facts showing that there is a genuine issue for trial, and a scintilla of evidence will not suffice." Brax v. City of Grand Rapids, Mich., ___ F. App'x ___, ___, 2018 WL 3526232, at *3 (6th Cir. July 23, 2018) (internal quotation marks omitted).

ARGUMENTS OF THE PARTIES AND ANALYSIS

Advanced Rehab has alleged, among other things, that the Opt-Out Notice violated the Act. In the instant motion, the Defendant seeks partial summary judgment as to its compliance with the statutory notice provisions in an effort to streamline the substantive and class issues before the Court in this case.

In 1991, "[v]oluminous consumer complaints about abuses of telephone technology... prompted Congress to pass the TCPA. Congress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls." Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012). To address the growing proliferation of these practices, considered to be invasions of consumer privacy, the TCPA banned certain activities and directed the Federal Communications Commission (the "FCC" or "Commission") to prescribe implementing regulations. Id. at 371, 132 S.Ct. 740; In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005, 21 F.C.C.R. 3787, 3788 (2006). In 2005, Congress passed the JFPA, which amended the TCPA to, among other things, codify the circumstances under which an opt-out request complied with the TCPA's provisions. In the Matter of Rules & Regulations, 21 F.C.C.R. at 3790-91.

Relevant to the issues to be ruled upon in the instant motion,3 the Act prohibits the "use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless ... the unsolicited advertisement contains a notice meeting the requirements" set forth in § 227(b)(2)(D). 47 U.S.C. § 227(b)(1)(C)(iii). Subparagraph (2)(D) states that "a notice contained in an unsolicited advertisement complies with the requirements" of the Act "only if ... (i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement,... (iii) the notice sets forth the requirements for a request under [§ 227(b)(2)(E)], ... [and] (vi) the notice complies with the requirements of [§ 227(d)]." 47 U.S.C. § 227(b)(2)(D); see also 47 C.F.R. § 64.1200(a)(4)(iii).

Subparagraph (E) requires that the Commission

47 U.S.C. § 227(b)(2)(E). Under the implementing regulation,

47 C.F.R. § 64.1200(a)(4)(v).

Subparagraph (d), cited in § 227(b)(2)(D)(vi), makes it unlawful

47 U.S.C. § 227(d)(1)(B).

In response to the motion, Plaintiff seeks denial of the relief sought as to (1) whether the Opt-Out Notice was "clear and conspicuous," (2) whether the Notice set forth the requirements for a proper opt-out request, and (3) whether the Notice complied with the requirements of § 227(d). The Court will address each of these arguments in turn.

Was the Opt-Out Notice "Clear and Conspicuous" in Accordance with § 227(b)(2)(D)(i)?

Although the term "clear and conspicuous" is not defined in the Act, the FCC offered some guidance in a 2006 order:

In the Matter of Rules & Regulations, 21 F.C.C.R. at 3801 (footnotes omitted). Such orders are entitled to deference by the federal courts. See Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459, 464-66 (4th Cir. 2018), petition for cert. docketed (No. 17-1705) (U.S. June 26, 2018).

The parties disagree as to whether the question of conspicuousness is one of law or fact. The Court is unaware of any Sixth Circuit authority addressing this issue with respect to the TCPA. Conspicuousness in other contexts, including the Fair Credit Reporting Act, the Truth in Lending Act ("TILA"), and the Uniform Commercial Code, has been considered by courts to be a question of law. See Burghy v. Dayton Racquet Club, Inc., 695 F.Supp.2d 689, 696-97 (S.D. Ohio 2010) (collecting cases); see also Smith v. Check-N-Go of Ill., Inc., 200 F.3d 511, 514-15 (7th Cir. 1999) (Easterbrook, C.J.) (finding "clear and conspicuous" under the [TILA] was a question of law for the court to determine, as, in accordance with the statute's objective reasonableness approach, "[w]hat is more conspicuous than any other disclosure depends on the contents of the form, not on how it affects any particular reader.").

Advanced Rehab insists, however, that the question here is factual, directing the Court's attention to Davies v. W.W. Grainger, Inc., Case No. 13-cv-03546, 2016 WL 6833902 (N.D. Ill. Nov. 21, 2016). The issue before the court in Davies on cross motions for summary judgment was whether the opt-out notice on a facsimile advertisement sent from W.W. Grainger to Davies was clear and conspicuous under the TCPA. Davies, 2016 WL 6833902, at *1, 4. Davies, as did the Defendant in this case, relied on Smith for the proposition that the question was a legal one. Id. The district court, while finding its reasoning sound, dismissed Smith out of hand as it dealt with TILA rather than the TCPA. Id. at *4. Instead, the Davies court analyzed the matter before it in light of Hana Financial, Inc. v. Hana Bank, ___ U.S. ___, 135 S.Ct. 907, 190 L.Ed.2d 800 (2015).

Hana arose from a trademark dispute over "tacking," a doctrine under which a "party may clothe a new [trade]mark with the priority position of an older mark." Hana Fin., 135 S.Ct. at 909. The United States Supreme Court, resolving a circuit split in which the Sixth Circuit fell on the side of evaluating tacking as a legal question, noted that "[a]pplication of a test that relies upon an ordinary consumer's understanding of the impression that a mark conveys falls comfortably within the ken of a jury," adding that, "[i]ndeed, we have long recognized across a variety of doctrinal contexts that, when the relevant question is how an ordinary person or community would make an assessment, the jury is generally the decisionmaker that ought to provide the fact-intensive answer." Id. at 911. The Court cautioned, however, that it did not mean "that a judge may never determine whether two marks may be tacked. If the facts warrant it, a judge may decide a tacking question on a motion for summary judgment or for judgment as a matter of law." Id.

Based on Hana, the Davies court concluded that whether the opt-out notice before it was clear and conspicuous was a mixed question of law and fact. Davies, 2016 WL 6833902, at *4. The court specifically found there were issues of fact regarding the proximity of the notice to the advertising text and the similarity in font size between the two, both of which appeared to be inconsistent with the FCC's 2006 order, as well as a dispute concerning the accuracy of an analysis conducted by defendant's expert who concluded the notice was clear and conspicuous. Id. at *5. Therefore, as there was insufficient evidence to support judgment as a matter of law for either party and material issues were in dispute, summary judgment was inappropriate. Id. at *4-5.

Unlike the parties in Davies, Plaintiff has pointed to nothing about the conspicuousness of the Opt-Out Notice that raises a genuine issue of material fact. While it complains that the type font used in the Notice was small, the 2006 FCC order stated only that the notice must be "distinguishable" from the advertising text through the "use of bolding, italics, different font, or the like." In the Matter of Rules & Regulations, 21 F.C.C.R. at 3801. On the faxes at issue here, copies of which have been provided to the Court, the Opt-Out Notice appearing on the first page, the only page on which Amedisys was mandated to place the notice, utilized a smaller, and therefore different, font than was used for the advertisement text, which is what the FCC requires. In arguing that the type was too small to support a judgment for Amedisys, Plaintiff cites to a TILA case from the Seventh Circuit, Lifanda v. Elmhurst Dodge, Inc., 237 F.3d 803 (7th Cir. 2001), in which the court found that the defendant was not entitled to judgment because a disclosure was "set forth in the smallest type on the form, which is so minuscule as to be barely legible." Lifanda, 237 F.3d at 808. The court articulated that "[a]lthough the district court notes that TILA does not mandate any minimum type size, it simply does not follow that type size is irrelevant to a determination of whether a disclosure is `conspicuous.' If the term `conspicuous' is to retain any meaning at all, it cannot be met as a matter of law by type disproportionately small to that in the rest of the document, and which is itself barely legible." Id. However, there has been no showing in this case, nor does it appear to the Court, that the font used in the Opt-Out Notice was "minuscule" or "barely legible." Id.

Accordingly, the Court finds, as a matter of law, that the Notice was clear and conspicuous for purposes of the TCPA. The Defendant's motion for summary judgment on that issue is GRANTED.

Did the Notice Set Forth the Requirements of an Opt-Out Request Pursuant to §§ 227(b)(2)(D)(iii) and 227(b)(2)(E)?

Advanced Rehab argues Amedisys has not shown as a matter of law that it fully complied with all the requirements of § 227(b)(2)(E), as it must under § 227(b)(2)(D)(iii). Plaintiff concedes that the Notice adequately set forth the first requirement, found in subparagraph (E)(i), that a request for opt-out identify the telephone and/or fax machine numbers to which the request applies. With respect to subparagraph (E)(ii), however, Plaintiff submits that it was not enough to advise the recipient that requests were to be made to a particular telephone or fax number. Rather, it had to state that calling these numbers was the only way to request an opt-out, i.e., that the request is compliant only if the stated methods are used. See 47 U.S.C. § 227(b)(2)(E)(ii). Advanced Rehab points to no case authority to support the notion that certain words must be used.

In Landsman & Funk, P.C. v. Lorman Business Center, Inc., No. 08-cv-481-bbc, 2009 WL 602019 (W.D. Wis. Mar. 9, 2009), cited by the Defendant, the fax advertisements at issue contained the following opt-out notice:

Landsman & Funk, 2009 WL 602019, at *2. The court rejected as "an unpersuasive game of semantics" plaintiff's assertion that the notice failed to inform recipients that an opt-out request must be in a specific form, as the notice made clear that a request would not be honored unless it was sent to the defendant through one of the enumerated options. Id. at *7.4 As previously noted herein, the FCC has made it clear that no specific wording is required. See In the Matter of Rules & Regulations, 21 F.C.C.R. at 3801. The Court is unpersuaded by the Plaintiff's position. Accordingly, summary judgment with respect to subparagraph (E)(ii) is GRANTED.

Subparagraph (E)(iii) is another matter. Amedisys has proffered no argument as to whether the Notice satisfied this subparagraph.5,6 Thus, the Court is unable to determine if relief is appropriate. The motion for summary judgment based on this subparagraph is, therefore, DENIED.

Did the Notice Comply with § 227(d)(1)(B)?

Finally, Plaintiff claims that the Opt-Out Notice failed to comport with § 227(d)(1)(B).7 Advanced Rehab submits that, as § 227(b)(2)(D) provides that the notice, as opposed to the transmission in general, complies with the Act only if the requirements of subparagraph (d) are satisfied, the information required by the subparagraph must be contained in the notice itself. Because the § 227(d)(1)(B) information here appeared at the top of the page and the Notice was placed at the bottom, the argument goes, Amedisys has failed to establish the notice was sufficient as a matter of law. Once again, the nonmovant cites to no case authority to support its assertion. However, the Defendant offers little in the way of substantive argument in support of summary judgment. Accordingly, based on the dearth of briefing on this subject by either party, the Court is uninclined to grant summary judgment.

CONCLUSION

For the reasons articulated herein, the Defendant's motion for summary judgment is DENIED as to the issues involving 47 U.S.C. §§ 227(b)(2)(E)(iii) and (d)(1)(B) and is GRANTED as to the remainder.

IT IS SO ORDERED this 15th day of August 2018.