FILED
NOT FOR PUBLICATION JAN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
N.B. INDUSTRIES, INC., a California No. 10-17934
corporation, individually and on behalf of
all others similarly situated, D.C. No. 4:10-cv-03203-LB
Plaintiff - Appellant,
MEMORANDUM *
v.
WELLS FARGO & COMPANY, a
Delaware corporation; WELLS FARGO
BANK, N.A., a national banking
association; UNITED STATES PAN
ASIAN AMERICAN CHAMBER OF
COMMERCE, a District of Columbia
nonprofit corporation; UNITED STATES
PAN ASIAN AMERICAN CHAMBER
OF COMMERCE EDUCATION
FOUNDATION, a District of Columbia
nonprofit corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted December 5, 2011
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and BERZON, Circuit Judges.
Plaintiff-Appellant N.B. Industries, Inc. (“N.B.”) alleges that Defendant-
Appellees Wells Fargo & Company, Wells Fargo N.A. (collectively, “Wells
Fargo”), the United States Pan Asian American Chamber of Commerce, and the
United States Pan Asian American Chamber of Commerce Education Foundation
(collectively, “USPAACC”) faxed N.B. unsolicited advertisements in violation of
the Junk Fax Prevention Act (“JFPA”), 47 U.S.C. § 227. The district court
dismissed with prejudice N.B.’s complaint for failure to state a claim. We affirm
the dismissal.
1. We review de novo a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Synagogue v. United States, 482 F.3d
1058, 1060 (9th Cir. 2007). Because this is an appeal from an order granting
Defendants’ motion to dismiss, we rely upon all the factual allegations pleaded in
the Plaintiff’s complaint and assume them to be true. See Knievel v. ESPN, 393
F.3d 1068, 1072 (9th Cir. 2005).
2. The faxes sent by Wells Fargo and USPAACC comprised almost
entirely information about an Asian Business Leadership Award, an application for
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the award, and encouragement to apply. In addition, the faxes contained five
mentions of the 2010 USPAACC CelebrAsian Business Opportunity Conference;
were marked with six USPAACC or Wells Fargo logos; provided general (non-
award specific) USPAACC or Wells Fargo contact information twice; and once
invited recipients to “[v]isit” USPAACC and Wells Fargo’s websites, sites that
contained information advertising their services.
JFPA defines an unsolicited advertisement as “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). To be commercially
available within the meaning of JFPA, a good or service must be available to be
bought or sold (or must be a pretext for advertising a product that is so available).
The American Heritage Dictionary 175 (3d ed. 1994) (defining commerce as the
“buying and selling of goods”).
There is no indication – and N.B. does not allege – that the Asian Business
Leadership Award is available for sale. Nor is there any indication or allegation
that the award itself is a pretext for advertising commercially available goods or
services. The Asian Business Leadership Award is thus not commercially
available.
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N.B. argues that the text relating to the award nevertheless violates JFPA
because it “proposes a commercial transaction”: “award consideration and the
opportunity to receive award benefits in exchange for applicants’ immediate
transfer of media and privacy rights.” N.B. is referring to the disclosure agreement
included with the faxed application, which essentially provides that Wells Fargo
and USPAACC may publicize the award winners. Requiring that applicants sign
such an agreement as a condition for applying for an award does not make the
award for sale. Indeed, publicity is presumably one of the benefits of the award to
those who win. We hold that the award itself is not commercially available and,
therefore, the description of the award, the application to apply for it, and the text
encouraging recipients to apply are not unsolicited advertisements within the
meaning of JFPA.
3. The faxes did, however, contain several incidental advertisements. To
determine whether such incidental advertising transforms an otherwise legitimate
fax into an illegal unsolicited advertisement, we must turn to the interpretation of
JFPA promulgated by the Federal Communications Commission, the agency to
which the Act explicitly delegates interpretive authority. 47 U.S.C. § 227(b)(2);
see also Chevron, U.S.A. v. NRDC, Inc., 467 U.S. 837, 845 (1984).
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The faxes repeatedly mention that the Asian Business Leadership Award
will be presented at the 25th Anniversary CelebrAsian Business Opportunity
Conference. Conference attendees were charged a fee for their participation in
exchange for the “chance to connect with serious buyers of Fortune Corporations
and the Federal Government, to showcase [their] products and services, and to take
part in this trillion dollar market at this one-of-a-kind conference.” Participation in
the conference was thus a commercially available service.
In addition, the faxes at issue contained several Wells Fargo and USPAACC
logos and slogans, as well as general (non-award related) contact information for
both organizations. The FCC Order interpreting JFPA indicates that company
logos and business slogans are advertising, although, in many cases, so de minimis
in comparison to the fax as a whole as not to render the entire fax an
advertisement. See 71 Fed. Reg. at 25,973. The logos, slogans, and contact
information included on the faxes at issue here could reasonably be construed as
advertising the commercial availability of Wells Fargo and USPAACC’s goods
and services. In particular, a recipient of the faxes could reasonably infer from the
references to Wells Fargo’s Asian Business Services program that Wells Fargo
sells services to Asian businesses.
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Finally, the faxes direct recipients to “[v]isit uspaacc.com or
wellsfargo.com/biz/asian.” At the time, the website at uspaacc.com was almost
entirely an advertisement for the CelebrAsian Conference. The Wells Fargo
website, while briefly describing the award, was similarly almost entirely an
advertisement for and description of Wells Fargo’s Asian business services.
Applying the FCC standards, the CelebrAsian Business Conference, the
inclusion of the logos, slogans, and non-award related contact information, and the
direction to visit Wells Fargo and USPAACC’s websites all constitute unsolicited
advertisements. The FCC’s guidance mentions two factors relevant to when
incidental advertising transforms a legitimate fax into an unsolicited advertisement:
(1) “whether the advertising is on behalf of the sender . . . , such as an
announcement in a membership organization’s monthly newsletter about an
upcoming conference” or whether it “is sold to and transmitted on behalf of [other]
entities”; and (2) “the amount of space devoted to advertising versus the amount of
space used for information.” 71 Fed. Reg. 25,967–01. The first factor clearly cuts
in favor of Wells Fargo and USPAACC.
As to the second factor, there is little caselaw on what percentage of
incidental advertising is too much. However, it is clear that the percentage in this
case is very low. C.f. Holmes v. Back Doctors, Ltd., 695 F. Supp. 2d 843, 851
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(S.D. Ill. 2010) (holding that a fax, one-seventh of which comprised advertising,
did not violate JFPA). We hold that the advertisements constituted such a small
portion of the faxes as to be incidental to the award application. Such de minimis
advertising is insufficient to transform faxes that were largely permissible into
prohibited communications.
In sum, the faxes sent by Wells Fargo and USPAACC to N.B. were not,
overall, advertisements within the meaning of JFPA. Therefore, faxing them
without N.B.’s permission did not violate the Act.
AFFIRMED.
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