9th Cir. Says No TCPA Claim Could Lie Against On-Line Fax Service

Defendant RingCentral, Inc. (“RingCentral”) operates an online service that allows its customers to send faxes using a cover sheet that includes a one-line statement, “Send and receive faxes with RingCentral, www.ringcentral.com RingCentral®” (the “Identifier”). Plaintiff Supply Pro Sorbents, LLC (“Sorbents”) claims that this practice violates the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, and constitutes common law conversion. The district court granted RingCentral’s motion to dismiss. Sorbents timely appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.  The district court determined that Sorbents’ injury, if any, did not confer Article III standing because it was de minimis. On appeal, Sorbents argues that receiving any unsolicited advertisement by fax is sufficient to establish standing under the TCPA without any additional showing. But, even if Sorbents had standing, its statutory claims fail because the Identifier is not an “unsolicited advertisement.” See 47 U.S.C. § 227(a)(5), (b)(1)(C). The Federal Communications Commission (“FCC”) administers the TCPA, see 47 U.S.C. § 227(b)(2); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009), so its interpretation of the TCPA is due at least Skidmore deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The FCC’s Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 and Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967-01 (May 3, 2006), offer a reasonable interpretation of the statute. Following the FCC’s guidance, we find that the one-line Identifier is an “incidental advertisement” that “does not convert the entire communication into an advertisement,” considering “the amount of space devoted to advertising versus the amount of space used for information.” See id. at 25,973.  Sorbents’ conversion claim also fails. RingCentral neither intentionally nor actually controlled Sorbents’ fax machine because RingCentral’s customers, rather than RingCentral itself, chose to send the fax containing the Identifier. See RESTATEMENT (SECOND) OF TORTS § 222A(“Conversion is an intentional exercise of dominion or control over a chattel …”). Moreover, the damages claimed by Sorbents—the resources used to print the Identifier—are too minimal to support a claim for conversion under the doctrine of de minimis non curat lex. See id. § 222 cmt. a (“There may, however, be minor and unimportant dispossessions … which do not … amount to conversion.”).