                                                                           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                            NOT FOR PUBLICATION                             JAN 06 2012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


                                        -2-
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.


                                          -3-
      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).




                                          -4-
      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.




                                          -5-
      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


                                           -6-
(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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