United States District Court, District of Columbia
AMIT P. MEHTA, District Judge.
Plaintiff Drug Reform Coordination Network, Inc., brought this action against Defendant Grey House Publishing, Inc., alleging that Grey House sent it an unsolicited facsimile advertisement in violation of the Telephone Consumer Protection Act of 1991. Grey House has moved to dismiss Plaintiff's Second Amended Complaint on the ground that the facsimile at issue does not meet the Act's definition of "unsolicited advertisement." The court disagrees and denies Defendant's Motion.
Defendant Grey House Publishing, Inc. ("Grey House"), is a New York-based corporation that publishes Hudson's Washington News Media Contact Directory, a reference source for media contacts in the District of Columbia area (the "Directory"). See Pl.'s Second Am. Compl., ECF No. 12 ¶ 6-7 [hereinafter Compl.]. Plaintiff Drug Reform Coordination Network, Inc. ("DRCN"), is a non-profit organization registered to do business in the District of Columbia that publishes a weekly electronic newsletter entitled "Drug War Chronicle." Id. ¶ 5. On or about February 12, 2014, Grey House sent DRCN a one-page facsimile (the "Fax"). See id. ¶ 9; see also Compl., Ex. A, ECF No. 12-1. The Fax read as follows:
The 2014 edition of Hudson's Washington News Media Contact Directory is a publication that provides the most accurate and up-to-date information for media contacts in and around our nation's capital. Below is the chance for your FREE LISTING to appear in the next edition. This is an opportunity to include as much information as possible. Please take a moment to fill out the form with your organization's information, as well as information on key contacts and executives. Accurate representation of your company is important to us.... You will not be charged for this listing, nor are you under any obligation to purchase the work.
ECF No. 12-1. Immediately below the quoted text, the Fax identified DRCN's directory listing information, including its "Contact Name, " address, phone number, fax number, and website URL. Id. The bottom of the Fax included the notice: "You are entitled to opt out of future faxes. To opt out, please call 1-800-562-2139 × 123 or check the box below and fax the form back to us. You may also e-mail KBierfeldt@greyhouse.com." Id.
Seven days after transmitting the Fax, on February 19, 2014, Grey House sent a colorful, multi-page email to DRCN's Executive Director, David Borden, featuring a picture of the Directory and offering it for sale. See ECF No. 12-2. The email touted the Directory as a "must-have resource"-"the perfect research tool for Public Relations, Marketing, Networking, and so much more"-and offered it at a discounted price. Id. The email also provided purchasing instructions for the Directory, including a link to a "Discount Order Form." Id. Grey House sent additional emails to Borden on April 15, 2014, and June 11, 2014. These emails, like the earlier one, heralded the Directory as "the most accurate, most up-to-date source for media contacts in our nation's capital, " ECF No. 12-3-"a gold mine of information [that] would be a welcome addition to any reference collection, " ECF No. 12-4-and similarly offered it for sale.
On July 3, 2014, DRCN filed a complaint against Grey House claiming that the Fax was an "unsolicited advertisement" in violation of the Telephone Consumer Protection Act of 1991 (TCPA). Compl. ¶ 1. DRCN alleged that the Fax "advertised the Defendant's products and/or services, and offered [it] a free listing in one of Defendant's directories." Id. ¶ 9. It further alleged that the three emails it received from Grey House "followed up" the Fax and were "part of an overall marketing campaign by the Defendant, both directly advertising one of the Defendant's directory publications, and also serving as a prelude to subsequent offers for the sale of that publication." Comp. ¶ 12. "Upon information and belief, " DRCN averred, "part of Defendant's business practice is to market its directories by transmitting a facsimile advertisement, such as [the Fax], that advertises a free listing in one of Defendant's directories, to potential and existing customers, and to then follow up that facsimile advertisement with subsequent email, fax, telephone communications, and other methods that solicit the purchase of Defendant's directories from those who may have been offered a free listing." Id. ¶ 13.
III. LEGAL STANDARD
In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept Plaintiff's factual allegations as true and "construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.'" Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quoting Schuler v. U.S., 617 F.2d 605, 608 (D.C. Cir. 1979). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation, " Papasan v. Allain, 478 U.S. 265, 286 (1986), nor "inferences... unsupported by the facts set out in the complaint, " Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
To survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The factual allegations in the complaint need not be "detailed"; however, the Federal Rules demand more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citing Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). If the facts as alleged fail to establish that a plaintiff has stated a claim upon which relief can be granted, a court must grant defendant's Rule 12(b)(6) motion. See Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C. 2013).
A. Unsolicited ...