Ketch, Inc. v. Royal Windows, Inc.

• Citation: 385 P.3d 994,2016 OK CIV APP 77
• Decision Date: 08 November 2016
• Docket Number: Case Number: 113986
• Parties: KETCH, INC., an Oklahoma Corporation on Behalf of Itself and All Others Similarly Situated, Plaintiff/Appellee, v. ROYAL WINDOWS, INC., a Texas Corporation, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

385 P.3d 994
2016 OK CIV APP 77

KETCH, INC., an Oklahoma Corporation on Behalf of Itself and All Others Similarly Situated, Plaintiff/Appellee,
v.
ROYAL WINDOWS, INC., a Texas Corporation, Defendant/Appellant.

Case Number: 113986

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: November 8, 2016
Mandate Issued: December 14, 2016

Matthew J.G. McDevitt, Shawn E. Arnold, LYTLE, SOULE & CURLEE, Oklahoma City, Oklahoma, for Plaintiff/Appellee

385 P.3d 996

Jeffrey J. Box, JEFFREY J. BOX, P.C., Oklahoma City, Oklahoma, for Defendant/Appellant

JERRY L. GOODMAN, CHIEF JUDGE:

¶ 1 Royal Windows, Inc. (Royal) appeals an October 4, 2013, order granting Ketch, Inc.'s, et al. (Ketch) motion for summary judgment on liability under the Telephone Communication Protection Act (TCPA), 47 U.S.C. 227 et seq ., as amended by the Junk Fax Protection Act (JFPA), as well as a May 1, 2015, order granting Ketch summary judgment and awarding damages in the amount of $290,000.00. The appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(1), 12 O.S. 2011 and Supp. 2013, Ch. 15, App. 1 and In Re Amendments to Oklahoma Supreme Court Rules, 2013 OK 67, ––– P.3d ––––. Based upon our review of the record and applicable law, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

BACKGROUND

¶ 2 Ketch was a customer of Royal from 2001. On March 20, 2008, Ketch requested a 2008 catalogue from Royal. On March 26, 2008, Royal sent Ketch a facsimile advertisement. The advertisement included Royal's contact information, address, and facsimile number. On July 17, 2008, Ketch filed a class action petition against Royal under the TCPA, 47 U.S.C. 227 et seq ., asserting the facsimile did not include required opt-out language, i.e. , if you had received the facsimile in error, please call to be removed. On December 18, 2009, the trial court granted Ketch's motion for class certification. Royal did not appeal this order.

¶ 3 On April 12, 2013, Ketch filed its first amended motion for summary judgment, asserting it was entitled to relief under the TCPA. Ketch asserted, inter alia , that all facsimile advertisements, whether solicited or unsolicited, must contain the opt-out language or liability attached. Ketch maintained Royal's facsimiles did not contain the required opt-out notice and were therefore in violation of the TCPA. Royal responded, disputing Ketch's assertions. Although Royal acknowledged its facsimile advertisements did not contain any opt-out notice, it asserted the TCPA only requires the opt-out language for unsolicited facsimile advertisements.¹ After additional briefing and a hearing, the trial court, by order entered on October 4, 2013, granted Ketch's motion for summary judgment, finding "all faxes, including faxes sent where the advertiser and recipient have an established business relationship, must contain a notice allowing the recipient to ‘opt-out’ of receiving additional faxes."

¶ 4 Ketch subsequently filed a motion for summary judgment on damages, asserting Royal sent a facsimile to the 103 Class Members between three (3) and seven (7) times from August 1, 2006, to July 17, 2008, for total damages in the amount of $303,500.00. Ketch further requested treble damages, asserting Royal willfully and knowingly violated the TCPA. Royal disagreed, asserting material disputed factual questions existed regarding the number of TCPA violations allegedly committed and the entities that comprise the class. By order entered on May 1, 2015, the trial court granted Ketch's motion for summary judgment, finding 580 facsimile advertisement violations. The court awarded $290,000.00 in damages. The court denied Ketch's request for treble damages.

¶ 5 Royal appeals.

STANDARD OF REVIEW

¶ 6 Summary judgment is properly granted "when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner , 1989 OK 146, ¶ 9, 782 P.2d 924. In reviewing a grant of summary judgment, we must view all conclusions and inferences to be drawn from the evidentiary materials in a light most favorable to the party who opposes the motion. Id .

¶ 7 An appeal from an order granting summary judgment is subject to de novo review.

385 P.3d 997

Shull v. Reid , 2011 OK 72, ¶ 3, 258 P.3d 521. De novo review involves a plenary, independent, and non-deferential examination of the trial court's decision. In re Estate of Bell–Levine , 2012 OK 112, ¶ 5, 293 P.3d 964, 966.

ANALYSIS

A. TCPA

¶ 8 For its first assertion of error, Royal asserts a question of fact exists as to whether the facsimile advertisements sent to Ketch and other Class Members were solicited or unsolicited, precluding summary judgment. Royal contends only unsolicited facsimile advertisements are subject to the TCPA, i.e. , must contain opt-out language. Ketch disagrees, contending all facsimile advertisements must contain opt-out language.

¶ 9 The TCPA imposes restrictions on the use of automatic telephone dialing systems, artificial or prerecorded voice messages, and telephone facsimile machines to send unsolicited advertisements unless the unsolicited advertisement contains a notice meeting the requirements of the TCPA. 47 U.S.C. 227(b)(1).² Relevant to this opinion, an unsolicited advertisement is defined under the TCPA 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).

¶ 10 The TCPA was amended on July 9, 2005, by the JFPA. The JFPA permits facsimile advertisements to be sent when an advertiser has an established business relationship with the recipient. 47 U.S.C. 227(b)(1)(C).³ However, the Act requires that an unsolicited advertisement to an established business relationship contain the required opt-out language. Id . at 227(b)(1)(C)(3) and (b)(2)(D)(i-vi). The opt-out notice must be clear and conspicuous, be located on the first page of the unsolicited advertisement, provide a 24–hour domestic telephone number, and identify a cost-free mechanism for the recipient to opt-out of receiving future unsolicited advertisements. Id . at 227(b)(2)(D)(i)-(iv).

¶ 11 Notably, the TCPA does not expressly require opt-out language on the sending of solicited or consented-to facsimile advertisements. However, the TCPA provides that the Federal Communications Commission (FCC) "shall proscribe regulations to implement the requirements" of the TCPA. Id . at 227(b)(2). The FCC specifically promulgated a regulation requiring all facsimile advertisements, whether solicited or unsolicited, to include an opt-out notice after August 1, 2006. See 47 C.F.R. 64.1200(a)(3)(iv) (2007) ("A facsimile advertisement that is sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice.").⁴ In addition, the FCC has reiterated its position that the opt-out notice is required for all facsimile advertisements, even if there is an established business relationship or the sender has obtained prior consent. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed.Reg. 25967–01, 25972, 2006 WL 1151584 (2006) ("In addition, entities that send facsimile advertisements to consumers from whom they obtained permission must include on the advertisements their opt-out notice and contact information to allow consumers to stop unwanted faxes in the future.").

¶ 12 In the present case, the parties dispute whether the FCC regulation applies to both solicited and unsolicited facsimile advertisements. Oklahoma has not addressed this issue.

385 P.3d 998

¶ 13 In Nack v. Walburg , 715 F.3d 680 (8th Cir. 2013), a fax advertisement was sent to the plaintiff with the express consent of the...