                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 02 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ASIS INTERNET SERVICES, a                        No. 08-15979
California corporation,
                                                 D.C. No. 3:05-cv-05124-JCS
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

AZOOGLE.COM, INC., a Delaware
corporation,

             Defendant - Appellee.



ASIS INTERNET SERVICES, a                        No. 08-17779
California corporation,
                                                 D.C. No. 3:05-cv-05124-JCS
             Plaintiff - Appellant,

  v.

AZOOGLE.COM, INC., a Delaware
corporation,

             Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Joseph C. Spero, Magistrate Judge, Presiding

                      Argued and Submitted October 8, 2009
                            San Francisco, California

Before: GOODWIN and PAEZ, Circuit Judges, and CARNEY, ** District Judge.

      Plaintiff ASIS Internet Services, Inc. (“Plaintiff”) appeals a summary

judgment for Defendant Azoogle.com (“Defendant”) and an award of costs. We

have jurisdiction under 28 U.S.C. § 1291. We affirm both orders.

      Plaintiff’s claim under the Controlling the Assault of Non-Solicited

Pornography and Marketing Act of 2003 (“CAN-SPAM”), 15 U.S.C. §§ 7701, et

seq., fails for lack of standing. “[T]he CAN-SPAM standing inquiry involves two

general components: (1) whether the plaintiff is an ‘Internet access service’

provider (‘IAS provider’), and (2) whether the plaintiff was ‘adversely affected by’

statutory violations.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1049 (9th Cir.

2009).

      Here, the second requirement is not satisfied. The mere cost of carrying

SPAM emails over Plaintiff’s facilities does not constitute a harm as required by

the statute. See id. at 1053 n.11. While Plaintiff argues that employee time was

spent on spam-related issues, Plaintiff concedes that it has no records detailing

employee time. Plaintiff also spent money on email filtering, though the cost of

         **
             The Honorable Cormac J. Carney, District Judge for the Central
District of California, sitting by designation.
email filtering did not increase due to the emails at issue. Such ordinary filtering

costs do not constitute a harm. See Gordon, 575 F.3d at 1054 (“We expect a

legitimate service provider to secure adequate bandwidth and storage capacity and

take reasonable precautions, such as implementing spam filters, as part of its

normal operations.”). Thus, Plaintiff has not suffered a harm within the meaning

of the statute and lacks standing.

      Plaintiff’s California Business and Professions Code § 17529.5 claim also

fails. Defendant neither sent nor procured the emails at issue, and therefore did not

“advertise” within the meaning of the statute.

      Accordingly, the district court’s grant of summary judgment for Defendant

is affirmed.

      We review for abuse of discretion an award of costs. Dawson v. City of

Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (citing Miles v. California, 320 F.3d

986, 988 (9th Cir. 2003)). Irrespective of whether the district court awarded costs

under Federal Rule of Civil Procedure 54(d)(1) or 15 U.S.C. § 7706(g)(4), we find

no abuse of discretion in the award. Accordingly, the order is affirmed.

      AFFIRMED.
