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COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT
WORCESTER, SS._______________________
NO. 03-P-1302
_______________________
THOMAS MULHERN,
Plaintiff-Appellant, Individually And On Behalf Of A Class of All Persons
v.
JOHN G. MACLEOD D/B/A ABC MORTGAGE COMPANY, Defendant
________________________
_________________________
BRIEF OF THE COMMONWEALTH OF MASSACHUSETTS AS AMICUS CURIAE
___________________________
COMMONWEALTH OF MASSACHUSETTSTHOMAS F. REILLYATTORNEY GENERAL
Christopher K. Barry-Smith, BBO #565698April C. English, BBO #652053Assistant Attorneys GeneralConsumer Protection and Antitrust DivisionOne Ashburton Place, 19th FloorBoston, MA 02108(617)727-2200, Ext. 2984
i
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . iii
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . 2
STATEMENT OF INTEREST AS AMICUS CURIAE . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 7
I. THE SUPERIOR COURT ERRED WHEN IT DENIEDMASSACHUSETTS CITIZENS THE RIGHT TOBRING PRIVATE CLAIMS UNDER THE TELEPHONECONSUMER PROTECTION ACT OF 1991 . . . . . . . . 7
A. Supremacy Clause Jurisprudence Provides that State Courts of General Jurisdiction Shall Hear Federal Claims, Absent Exclusive Federal Jurisdiction . . . . . . . . . . . 8
B. The Superior Court, as a Court of General Jurisdiction, Has JurisdictionOver TCPA Claims . . . . . . . . . . . . 11
C. The TCPA Does Not Require EnablingLegislation, and No MassachusettsLaw or Rule Prevents MassachusettsCourts from Hearing TCPA Claims . . . . . 13
II. SUBSTANTIALLY ALL OTHER COURTS HAVERULED THAT THE TCPA DOES NOT REQUIREENABLING LEGISLATION . . . . . . . . . . . . . 18
III. THE SUPERIOR COURT ERRONEOUSLY IGNORED THE MASSACHUSETTS LEGISLATURE’S EXPRESSACKNOWLEDGMENT THAT THE MASSACHUSETTSTELEMARKETING ACT SUPPLEMENTS EXISTINGREMEDIES FOR TELEMARKETING, INCLUDINGTHE TCPA . . . . . . . . . . . . . . . . . . . 23
ii
IV. PRIVATE RIGHTS OF ACTION PLAY ANIMPORTANT ROLE IN THE MULTI-PRONGEDENFORCEMENT SCHEME ESTABLISHED BYCONGRESS, AND HELP ENFORCE COMPLIANCEWITH TELEMARKETING LAWS . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . 29
iii
TABLE OF AUTHORITIESPAGE
CasesAdministrator of Office of Price Admin. v.
Chook, 320 Mass. 187 (1946) . . . . . . . . . 12
Autoflex Leasing, Inc. v. Mfrs. Auto Leasing,Inc., 16 S.W.3d 815 (Tex. App. 2000) . . . . . 21
Claflin v. Houseman 93 U.S. 130 (1876) . . . . . . . 9
Commonwealth v. MacLeod, 437 Mass. 286 (2002) . . . 24
Donnelly v. Yellow Freight Sys., 874 F.2d 402(7th Cir. 1989)(aff’d 494 U.S. 820 (1990)) . . 10
Erie Net, Inc. v. Velocity Net, Inc.,156 F.3d 513 (3rd Cir. 1998) . . . . . . . . . 20
Felder v. Casey, 487 U.S. 131 (1988) . . . . . . . 17
Foxhall Realty Law Offices, Inc. v. Telecomms.Premium Servs., Ltd., 156 F.3d 432(2nd Cir. 1998) . . . . . . . . . . . . . . . 20
Green v. Wyman-Gordon Co., 422 Mass. 551 (1996) . . 24
GTE Products Corp. v. Broadway Elec. Supply,42 Mass. App. Ct. 293 (1997) . . . . . . . . . 12
Gulf Offshore Oil Co. v. Mobil Oil Co.,453 U.S. 473 (1981) . . . . . . . . . . 3, 9, 14
Gutierrez v. Massachusetts Bay Transit Auth.,437 Mass. 396 (2002) . . . . . . . . . . . . . 12
Hooters of Augusta, Inc. v. Nicholson,537 S.E.2d 468 (Ga. App. 2000) . . . . . . . . 19
Howlett v. Rose, 496 U.S. 356 (1990) 3, 10, 11, 16-17
International Science & Technology Institute,Inc. v. Inacom Communications, Inc.,106 F.3d 1146 4th Cir. 1997) . . . . . . 9, 20, 21
James v. Kentucky, 466 U.S. 341 (1984) . . . . . . 17
iv
John Lary, d/b/a Internal Medicine Clinic v.Flasch Business Consulting, et al.,(Ala. Civ. App.2003) 2003 WL 22463948 . . 19, 23
Kaufman v. ACS Systems, Inc., 110 Cal.App. 4th 886 (Cal. App. 2nd Dist.,Div. 1)(2003) . . . . . . . . . . . . 19, 21, 26
Missouri ex rel. Southern R. Co. v. Mayfield,340 U.S. 1 (1950) . . . . . . . . . . . . . . 17
Mondou v. New York, New Haven & Hartford RailroadCo., 223 U.S. 1 (1912) . . . . . . . . . . . . 10
New York v. United States, 505 U.S. 144 (1992) . . 13
Pelland v. America’s Toner, Northampton District Court, No. 0245SC0699 (October 25, 2003) . . . 11
R.A.Ponte Architects, Ltd. v. Investors’ Alert, Inc., 815 A.2d 816 (Md. App. 2003) . . . . . . . . 21-22
Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907 (Mo. 2002) . . . . . . . . . . . 19
Salinas v. United States, 522 U.S. 52 (1997) . . . 15
Schulman v. Chase Manhattan Bank, 268 AD.2d.174 (N.Y. Ct. App. 2000) . . . . . . . . . . . 20
Taflin v. Levitt, 493 U.S. 455 (1990) . . . . 9, 15, 21
Testa v. Katt, 330 U.S. 386 (1947)(quoting U.S. Const., Art. VI., Sec. 2) . . 8-11
Timothy Condon v. Office Depot, Inc., 855 So.2d.644 (Fla. App. 2 Dist. 2003) . . . . . 15, 19, 21
United States v. Lopez, 514 U.S. 549 (1995) . . . . 14
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) . . . . . . . . . . . . . . 14
Zelma v. Mkt. U.S.A., 778 A.2d 591(N.J. App. Div.2001) . . . . . . . . . . . . . 20
v
Statutes and Regulations47 C.F.R. § 310.4(b) . . . . . . . . . . . . . . . . 2
47 U.S.C. § 227 . . . . . . . . . . . . . . . . 1, 2, 4
47 U.S.C. § 227(a)(4) . . . . . . . . . . . . . . . . 5
47 U.S.C. § 227(b)(1)(B) . . . . . . . . . . . . 2, 5
47 U.S.C. § 227(b)(1)(C) . . . . . . . . . . . . 2, 5
47 U.S.C. § 227(b)(2) . . . . . . . . . . . . . . . . 5
47 U.S.C. § 227(b)(3) . . . . . . 1-3, 6, 7, 14, 22, 26
47 U.S.C. § 227(c) . . . . . . . . . . . . . . . . . 2
47 U.S.C. § 227(f) . . . . . . . . . . . . . . . 6, 13
47 U.S.C. § 227(f)(1) . . . . . . . . . . . . . . 2, 6
47 U.S.C. § 227(f)(3) . . . . . . . . . . . . . . 2, 6
47 U.S.C. § 227(f)(7) . . . . . . . . . . . . . . 2, 6
68 Fed.Reg. 4580 . . . . . . . . . . . . . . . . . 26
G. L. c. 159C . . . . . . . . . . . . . . 5, 23, 24, 27
G. L. c. 159C, § 3 . . . . . . . . . . . . . . . . 23
G. L. c. 159C, § 7 . . . . . . . . . . . . . . . . 23
G. L. c. 159C, § 8(a) . . . . . . . . . . . . . . . 23
G. L. c. 159C, § 8(b) . . . . . . . . . . . . . . . 24
G. L. c. 159C, § 13 . . . . . . . . . . . . . . 24, 25
G. L. c. 212, § 4 . . . . . . . . . . . . . . . . . 11
Mass. R. App. P. 17 . . . . . . . . . . . . . . . . . 1
Superior Court Rule 20, § 5 . . . . . . . . . . . . 11
vi
Other Authorities137 Cong. Rec. S. 16,205 (daily ed. Nov. 7, 1991),
1991 WL 229525 at pg. 5 (Remarks of Sen. Hollings) . . . . . . 16, 18, 25
Biggerstaff, State Court and the Telephone Consumer Protections Act of 1991:Must State Opt-in? Can States Opt-out?,33 Conn.L.Rev. 407 (2001)) . . . . . . . . . . 21
Federal Trade Commission Press Release (September 17, 2003), <http://www.ftc.gov/opa/2003/09/dncnumbers030917.htm> . . . . . . . 5, 27
Hart, The Relations Between State andFederal Law, 54 Colum.L.Rev. 489 (1954) . . . 17
In re Rules and Regulations Implementing theTCPA,“Report and Order” FCC 03-153, ¶206(June 26, 2003), 2003 WL 21527853 . . . . . . 18
Massachusetts Office of Consumer Affairs &Business Regulations Press Release (August 19, 2003), <http://www.state.ma.us/consumer/New/pr081903> . . . . . . . . . . . . . 5
Pub.L.No. 102-243, §2(2), 105 Stat. 2394 (1991) . . 26
Pub.L.No. 102-243, §2(3) . . . . . . . . . . . . . 26
Pub.L.No. 102-243, §2(5) . . . . . . . . . . . . . 26
Pub.L.No. 102-243, §2(7) . . . . . . . . . . . . . 26
Rules & Regulations Implementing the TelephoneConsumer Protection Act of 1991, Reportand Order, 18 FCC Rcd. 14014, 14054 ¶66 . . . .27
STATEMENT OF INTEREST OF THE ATTORNEY GENERAL AS AMICUS CURIAE
The Attorney General submits this brief as amicus
curiae, pursuant to Mass. R. App. P. 17, in order to
preserve the ability of Massachusetts citizens to guard
themselves against unlawful telemarketing sales calls
and the invasion of privacy inherent in those calls.
Among the tools available to Massachusetts citizens to
combat illegal telemarketing is a private right of
action to obtain an injunction and $500.00 statutory
damages for violation of the federal Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”).
The Superior Court’s decision dismissing a private
claim against the defendant telemarketer, if permitted
to stand, would deprive Massachusetts residents of the
rights and protections provided by Congress twelve
years ago. Massachusetts residents – unlike citizens
anywhere else in the country – would be denied their
private right of action under the TCPA, whether for
“blast-faxing,” banned pre-recorded messages, or “Do
Not Call” violations. Supreme Court precedent, the
TCPA and Massachusetts statutory law demand that
Massachusetts citizens enjoy the full rights and
protections afforded by Congress, including a private
right of action under 47 U.S.C. § 227(b)(3) against
unlawful telemarketing practices. The Attorney General
2
submits this brief in support of plaintiff-appellant
Thomas Mulhern’s request for reversal of the Superior
Court’s decision.
SUMMARY OF THE ARGUMENT
At issue on appeal is whether Massachusetts
citizens may pursue a private claim in Massachusetts
court against telemarketers who violate the federal
Telephone Consumer Protection Act, 47 U.S.C. § 227.
The TCPA protects citizens from unwanted telemarketing
solicitations in several ways, including by:
• banning the use of unsolicited commercialfacsimile advertisements;
• prohibiting the commercial use of pre-recorded telephone messages; and
• establishing a national “Do Not Call”registry and prohibiting commercialtelemarketers from calling phone numbersappearing on the Do Not Call registry (as ofOctober 1, 2003).
47 U.S.C. § 227(b)(1)(B) & (C); § 227(c); 47 C.F.R. §
310.4(b).
Congress also enacted a TCPA enforcement scheme
authorizing both government enforcement by the Federal
Communications Commission and State Attorneys General,
47 U.S.C. § 227(f)(1), (3) & (7), and private lawsuits.
Id. § 227(b)(3). Private parties, “if otherwise
permitted by the laws or rules of court of a State,”
3
may bring a civil action in “an appropriate [State]
court” to enjoin TCPA violations and recover actual
damages or $500.00 statutory damages. Id.
In dismissing Mulhern’s TCPA complaint, the
Superior Court ruled that Section 227(b)(3) of the TCPA
required states to pass specific enabling legislation
before hearing TCPA claims. That decision was in error
and should be reversed.
The text of the TCPA establishing a private right
of action in state court reflects the deeply rooted
presumption that state courts of general jurisdiction
have a duty to hear federal claims unless (1) Congress
grants federal courts exclusive jurisdiction or (2) a
“neutral rule of judicial administration,” applied
evenhandedly, bars the federal claim. Howlett v. Rose,
496 U.S. 356, 374 (1990). Because that rule reflects
the federalism balance struck by the founders, it
cannot be altered absent a “clear statement” from
Congress. Gulf Offshore Oil Co. v. Mobil Oil Co., 453
U.S. 473, 478 (1981). The TCPA contains no such
directive; its “otherwise permitted” language instead
reflects the rule that federal claims remain subject to
state procedural laws and rules of court. See pp. 10-
19, infra. Nearly all courts facing this issue have
4
rejected the analysis adopted by the Superior Court.
See pp. 20-24, infra.
Moreover, even if the Massachusetts legislature
could elect whether its citizens enjoy the rights and
protections legislated by Congress, the Massachusetts
legislature has expressly endorsed consumer remedies
against unwanted telemarketing, like those in the TCPA.
Finally, the legislative policies reflected in the
TCPA and the Massachusetts telemarketing statute demand
that Massachusetts citizens, like the citizens of every
other state, enjoy a private cause of action for TCPA
violations to protect their residential privacy and
guard against illegal telemarketing. See pp. 28-31,
infra.
STATEMENT OF THE CASE
In 1991, in response to increasing public
complaints concerning various forms of telemarketing,
Congress passed the Telephone Consumer Protection Act.
47 U.S.C. § 227. Section 227(b)(1)(C) of the TCPA
makes it unlawful to send to a facsimile machine
“unsolicited advertisements,” defined as “material
advertising the commercial availability or quality of
any property, goods, or services which is transmitted
to any person without that person’s express invitation
5
or permission.” 47 U.S.C. § 227(a)(4). In addition to
banning unsolicited fax advertisements, the TCPA also
prohibits the commercial use of pre-recorded or
artificial voice messages, regulates the use of
automatic telephone dialer systems, and authorizes the
Federal Communications Commission to issue regulations
implementing the TCPA. Id. § 227(b)(1)(B), (C) &
(b)(2).
In 2003, the FCC issued regulations under the TCPA
establishing a nationwide Do Not Call Registry.
Effective October 1, 2003, commercial telemarketers are
prohibited from placing unsolicited calls to those
households that sign up for that Do Not Call Registry.
Since then, more than 50 million Americans have signed
up for the national registry under the TCPA. Federal
Trade Commission Press Release (September 17, 2003),
<http://www.ftc.gov/opa/2003/09/dncnumbers 030917.htm>.
More than 1.2 million Massachusetts residents have
signed up for the Massachusetts Do Not Call list,
established in 2003 pursuant to G. L. c 159C. See
Massachusetts Office of Consumer Affairs & Business
Regulations Press Release (August 19, 2003),
<http://www.state.ma.us/consumer/New/pr081903>.
6
The TCPA established a three-pronged enforcement
scheme that relies on the federal government, State
Attorneys General, and private enforcement. First,
Section 227(f) authorizes the FCC to bring civil
actions or administrative enforcement actions against
TCPA violators, seeking injunctions and civil
penalties. 47 U.S.C. § 227 (f)(3), (7). Second, State
Attorneys General are authorized to bring enforcement
actions, in federal court, on behalf of citizens in
their State, seeking actual damages or $500 in damages
per TCPA violation, trebled for knowing violations.
Id. § 227(f)(1). Third, Section 227(b)(3) authorizes
private rights of action in state courts:
A person or entity may, if otherwisepermitted by the laws or rules of court of aState, bring in an appropriate court of thatState-(A) an action based on violation of this[Act] or regulations [promulgated by the FCC]to enjoin such violation, (B) an action to recover for actual monetaryloss from such a violation, or to receive$500 in damages for such violation, whicheveris greater, or (C) both such actions.
If the court finds the defendant wilfully orknowingly violated this [Act], the court may,in its discretion, increase the amount of theaward to . . . not more than three times theamount available under subparagraph (B).
Id. § 227 (b)(3)(emphasis added). Although Mulhern’s
claim involves unsolicited fax advertisements, the same
7
enforcement scheme applies to other TCPA violations,
including Do Not Call violations.
Mulhern brought his private TCPA claim in
Massachusetts Superior Court after receiving numerous
unsolicited fax advertisements. The Superior Court
allowed the telemarketer’s motion to dismiss based on
the court’s interpretation of the “if otherwise
permitted” language of Section 227(b)(3). The Superior
Court concluded that a) the TCPA private right of
action was effective only if a state enacted enabling
legislation, and b) the Massachusetts legislature has
not “opted in” to the TCPA by passing legislation.
(Appendix pp. 586). Accordingly, the Superior Court
held Massachusetts courts could not entertain Mulhern’s
private TCPA claim and dismissed it. This appeal
followed.
ARGUMENT
I. THE SUPERIOR COURT ERRED WHEN IT DENIEDMASSACHUSETTS CITIZENS THE RIGHT TO BRING PRIVATECLAIMS UNDER THE TELEPHONE CONSUMER PROTECTION ACTOF 1991.
The Superior Court’s decision is in error. First,
the Superior Court ignored, or fundamentally
misconstrued, the Constitutional mandate of the
Supremacy Clause, which requires state courts to
entertain federal claims with limited exceptions,
8
neither of which applies here. Second, the TCPA does
not require enabling legislation, nor does the
Supremacy Clause permit that interpretation, which has
been rejected by substantially all courts that have
addressed the issue. Moreover, the Massachusetts
legislature unambiguously stated that the Massachusetts
telemarketing law supplements, and does not displace,
prior existing rights and claims such as the TCPA. The
decision should be reversed.
A. Supremacy Clause Jurisprudence Provides thatState Courts of General Jurisdiction ShallHear Federal Claims, Absent Exclusive FederalJurisdiction.
The appropriate starting point for analyzing
private TCPA claims is the Supremacy Clause of the
Constitution and the well established principle that
state courts have original jurisdiction to hear federal
causes of action. The Supremacy Clause provides that
federal laws are “the supreme laws of the land, binding
alike upon states, courts, and the people, ‘any Thing
in the Constitution or Laws of any State to the
Contrary notwithstanding.’” Testa v. Katt, 330 U.S.
386, 391 (1947) (quoting U.S. Const., Art. VI., Sec.
1
The Supremacy Clause states: “This Constitution, andthe Laws of the United States . . . shall be thesupreme Law of the Land; and the Judges in every stateshall be bound thereby, any Thing in the Constitutionor Laws of any state to the Contrary notwithstanding.” U.S. Constitution, art.VI.
2
See also Tafflin v. Levitt, 493 U.S. 455, 458-59(1990)(state court jurisdiction over federal RICOclaims) (“Under this system of dual sovereignty, wehave consistently held that state courts have inherentauthority, and are thus presumptively competent, toadjudicate claims arising under the laws of the UnitedStates.”); International Science & TechnologyInstitute, Inc. v. Inacom Communications, Inc., 106F.3d 1146, 1151 (4th Cir. 1997) (no requirement that astate take any affirmative action to permit suits underthe TCPA).
9
2).1 “The federal law is the law in the state as much
as laws passed by the state legislature.” Id. at 392;
Claflin v. Houseman, 93 U.S. 130, 137 (1876). The
Supreme Court has explained,
“The general principle of state-courtjurisdiction over cases arising under federallaw is straightforward: state courts mayassume subject matter jurisdiction over afederal cause of action absent provision byCongress to the contrary or disablingincompatibility between the federal claim andthe state-court adjudication.”
Gulf Offshore Oil Co. v. Mobil Oil Co., 453 U.S. 473,
477 (1981).2
Moreover, “[o]nce Congress has vested jurisdiction
over a federal claim in the state courts, the state
10
courts, including the courts of [this state] are under
a constitutional obligation to exercise jurisdiction.”
Donnelly v. Yellow Freight Sys., 874 F.2d 402 (7th Cir.
1989) (emphasis supplied), aff’d, 494 U.S. 820 (1990).
State courts that are otherwise appropriate for
adjudication of a federal claim may not refuse to
enforce a federal statute or otherwise discriminate
against federal claims. Howlett v. Rose, 496 U.S. 356,
370 (1990) (state court cannot apply a state law
defense to defeat a federal law claim); see Testa, 330
U.S. at 393 (state courts cannot refuse to hear federal
claims, especially in circumstances where state courts
would hear similar state law claims); Mondou v. New
York, New Haven & Hartford Railroad Co., 223 U.S. 1,
56-58 (1912) (reversing state court’s refusal to hear a
suit brought under the Federal Employers’ Liability
Act). Likewise, state legislatures and state courts
are not at liberty to decide whether a particular
federal law may be enforced in state court. See
Howlett, 496 U.S. at 373. The Supreme Court thus has
made clear that state courts of general jurisdiction
not only have the authority, but the obligation, under
the Supremacy Clause to hear federal law claims, absent
exclusive federal jurisdiction.
3
Private TCPA claims also have been brought in thesmall claims section of Massachusetts district courts. See, e.g., Pelland v. America’s Toner, NorthamptonDistrict Court, No. 0245SC0699 (October 25, 2003).
11
The Superior Court failed to consider the
Supremacy Clause and its impact on the question before
the court. Instead, the court seemed concerned that a
hypothetical explosion in private TCPA cases would
burden state courts, even though the TCPA had already
been in effect for twelve years. Even if the Superior
Court’s fear of increased litigation was supportable,
that fear may not serve as the basis to refuse to hear
otherwise appropriate federal claims. See Testa, 330
U.S. at 392; Howlett, 496 U.S. at 373.
B. The Superior Court, as a Court of GeneralJurisdiction, Has Jurisdiction Over TCPAClaims.
Against this constitutional backdrop, the TCPA
authorizes a private right of action in state courts.
47 U.S.C. § 227(b)(3). In this case, Mulhern brought
his TCPA claim as a representative class action in
Superior Court and, as a result, satisfied the $25,000
jurisdictional requirement of the Superior Court.3 See
Superior Court Rule 20, § 5.
The Superior Court is a court of general
jurisdiction. G. L. c. 212, § 4 provides that the
4
For examples of Massachusetts courts hearing actionsfor damages based in federal law, see, e.g., Gutierrezv. Massachusetts Bay Transit Auth., 437 Mass. 396, 400n.4 (2002) (alleged civil rights claim interpreted asbrought under 42 U.S.C. § 1983 and G. L. c. 12, § 11); GTE Products Corp. v. Broadway Elec. Supply, 42 Mass.App. Ct. 293, 295 (1997) (holding rendered followingverdict of trial on RICO claims under 18 U.S.C. §§ 1961et seq.).
12
Superior Court “shall have original jurisdiction of all
civil actions except those of which other courts have
exclusive jurisdiction.” The Superior Court then has
jurisdiction to hear Mulhern’s private TCPA claim, even
though the TCPA claim is based in federal law. See
Administrator of Office of Price Admin. v. Chook, 320
Mass. 187, 189 (1946) (“if the Superior Court has had
conferred upon it a jurisdiction ‘competent to decide
rights of the like character and class’, it should
exercise the jurisdiction, although the foundation of
the proceedings is a federal statute”).4 As discussed
below, the potential limitation to state court
jurisdiction over TCPA claims - that a neutral rule may
preclude consideration of a federal case in state court
- does not affect this case.
13
C. The TCPA Does Not Require EnablingLegislation, and No Massachusetts Law orRule Prevents Massachusetts Courts fromHearing TCPA Claims.
The Superior Court erred by ruling that TCPA
private claims could be brought in state court only
after enabling legislation specifically authorized
state court jurisdiction over those claims. As
discussed above, that conclusion wholly ignores the
general rule that state courts are a proper forum for
federal claims. Although Congress may give federal
courts exclusive jurisdiction over federal claims, so
that state courts may not entertain those claims, it
did not do so here.
Congress has the plenary power to determine
jurisdiction over federal claims. New York v. United
States, 505 U.S. 144, 178 (1992). Congress may i)
provide that federal claims be brought exclusively in
federal courts, ii) allow concurrent jurisdiction in
state and federal courts, or iii) provide for
jurisdiction in state courts only. In the TCPA,
Congress adopted a mixed approach. Congress provided
exclusive federal jurisdiction over enforcement actions
by State Attorneys General, and authorized FCC
enforcement actions either administratively or in
federal court. 47 U.S.C. § 227(f). With respect to
5
A clear statement is one which is unambiguous, anddoes not reasonably allow for an alternativeinterpretation. United States v. Lopez, 514 U.S. 549,561-562 (1995). Legislative silence cannot serve as
14
private TCPA claims, Congress provided jurisdiction
only in state court. Id. § 227(b)(3).
Congress, even though it used the “if otherwise
permitted” language, did not condition state court TCPA
jurisdiction on state-specific enabling legislation.
State court jurisdiction over federal claims reflects
an important federalism balance struck by the
Constitution. For that reason, the Supreme Court has
ruled that any alteration to that balance – including
changing state court jurisdiction over federal claims –
requires a “clear statement” by Congress. Gulf
Offshore, 453 U.S. at 478 (state court jurisdiction for
federal claims can only be avoided by “an explicit
statutory directive, by unmistakable implication from
legislative history, or by a clear incompatibility
between state-court jurisdiction and federal
interests.”); Will v. Michigan Dept. of State Police,
491 U.S. 58, 65 (1989) (“[I]f Congress intends to alter
the usual constitutional balance between the States and
the Federal Government, it must make its intention to
do so unmistakably clear.”).5 Although the Supreme
the basis to alter the presumption in favor of statecourt jurisdiction. See Tafflin, 493 U.S. at 462 (“Thequestion is not whether any intent at all may bedivined from legislative silence on the issue, butwhether Congress in its deliberations may be said tohave affirmatively, unmistakably intended jurisdictionto be exclusively federal.”).
6
See Salinas v. United States, 522 U.S. 52, 59 (1997)(faced with a statutory interpretation that would alterthe existing balance of federal and state powers,“absent a clear indication of Congress’ intent tochange the balance, the proper course was to adopt aconstruction which maintains the existing balance”).
15
Court typically has applied the “clear statement” rule
to determine whether statutes provide exclusive federal
jurisdiction, the rule also applies to the issue
presented here: whether Congress intended in the TCPA
to change the constitutional presumption in favor of
state court jurisdiction over federal claims.6
Congress did not clearly state that state
jurisdiction over private TCPA claims requires state
enabling legislation. The statutory language itself –
“if otherwise permitted by the laws or rules of a state
court” – does not indicate that TCPA private rights are
“optional,” effective only after state-specific
legislation. See, e.g., Timothy Condon v. Office
Depot, Inc., 855 So.2d 644, 648 (Fla. App. 2 Dist.
2003)(applying the “clear statement” rule to the TCPA
and holding “we would require an explicit mandate from
16
Congress that the private cause of action it created
was conditioned on prior state approval.”).
The TCPA’s legislative history also does not
contain a “clear statement” that TCPA claims may be
heard in state court only after a state passes enabling
legislation. For example, the Senate TCPA sponsor did
not condition private rights on state legislation:
The [TCPA] contains a private right-of-actionprovision that will make it easier forconsumers to recover damages from receivingthese computerized calls. The provisionwould allow consumers to bring an action inState court against any entity that violatesthe bill.
137 Cong. Rec. S. 16,204 (daily ed. Nov. 7, 1991), 1991
WL 229525 at *5 (Remarks of Sen. Hollings) (A. 179).
If Congress intended to supersede years of Supremacy
Clause jurisprudence and make TCPA rights and claims
optional – available to some Americans but not others –
Congress is required to make a clear statement to that
effect. It did not.
Congress’ authorization of private lawsuits
“otherwise permitted” under state law instead reflects
the other limitation on state court jurisdiction over
federal claims. A “neutral rule of judicial
administration,” applied even-handedly, may bar a
federal claim in state court. Howlett, 496 U.S. at 374
17
(quoting Hart, The Relations Between State and Federal
Law, 54 Colum.L.Rev. 489, 508 (1954)); Missouri ex
rel. Southern R. Co. v. Mayfield, 340 U.S. 1 (1950)
(forum non conveniens rule applied to federal claim).
Although states may be obligated to honor federal law
in their courts, the States have great latitude to
establish the structure and jurisdiction of their own
courts and may apply their own neutral procedural rules
to federal claims, unless federal law preempts those
rules. Howlett, 496 U.S. at 372; see also Felder v.
Casey, 487 U.S. 131, 137 (1988); James v. Kentucky, 466
U.S. 341, 348 (1984). The general rule, “bottomed
deeply in belief in the importance of state control of
state judicial procedure, is that federal law takes the
state courts as it finds them.” Howlett, 496 U.S. at
372 (quoting Hart, The Relations Between State and
Federal Law, 54 Colum.L.Rev. 489, 508 (1954)).
It is that respect for state procedural law and
rules of court embodied in the TCPA’s “otherwise
permitted” language, not the notion that each state
must affirmatively legislate whether to honor federal
private claims. Senator Hollings acknowledged this
respect for state procedural laws: “The bill does not,
because of constitutional constraints, dictate to the
18
States which court in each State shall be a proper
venue for such an action, as this is a matter for State
legislators to determine.” 137 Cong. Rec. S. 16,204-01
(daily ed. Nov. 7, 1991), 1991 WL 229525 at *5 (Remarks
of Sen. Hollings) (Appendix p. 179). The FCC, the
federal agency responsible for implementing the TCPA,
has also stated that the “otherwise permitted” language
“suggests that Congress contemplated that such legal
action was a matter for state courts, subject to those
courts’ rules.” In re Rules and Regulations
Implementing the TCPA, FCC 03-153, ¶206 (June 26,
2003), 2003 WL 21527853.
The Superior Court faced no procedural barrier to
hearing Mulhern’s private TCPA claim, and none exists.
Therefore, this Court should reverse the Superior Court
decision and require that court to hear the claims of
private parties seeking to enforce the TCPA’s
prohibitions on unsolicited fax and telephone sales
calls.
II. SUBSTANTIALLY ALL OTHER COURTS HAVE RULED THAT THETCPA DOES NOT REQUIRE ENABLING LEGISLATION.
Substantially all courts addressing this issue
have rejected the “opt-in” construction of the TCPA
adopted by the Superior Court. This court should also
ensure that Massachusetts residents enjoy the rights,
19
protection and causes of action Congress provided in
1991.
State appeals courts in seven states have rejected
a requirement that states affirmatively provide for
TCPA jurisdiction and held instead that an individual’s
right to vindicate his or her TCPA claims in state
court does not depend upon state enabling legislation.
See John Lary, d/b/a Internal Medicine Clinic v. Flasch
Business Consulting, et al. (Ala. Civ. App.2003) 2003
WL 22463948; Kaufman v. ACS Systems, Inc., 110 Cal.App.
4th 886 (Cal.App.2nd Dist., Div.1)(2003)(recipients had
private rights of action allowing them to file TCPA
actions in state court); Condon, 855 So. 2d at 646
(Fla. App. 2 Dist. 2003) (state need not adopt enabling
legislation before a state court of competent
jurisdiction can entertain a private cause of action
under the TCPA); Hooters of Augusta, Inc. v. Nicholson,
537 S.E.2d 468, 471 (Ga. App. 2000) (construing TCPA to
create private cause of action and to confer
jurisdiction on state courts without need for enabling
state legislation); Reynolds v. Diamond Foods &
Poultry, Inc., 79 S.W.3d 907, 910 (Mo. 2002) (state
enabling legislation not necessary to create state
jurisdiction over private cause of action under TCPA);
7
Several federal courts also have stated that TCPAprivate claims are properly brought in state courts. Foxhall Realty Law Offices, Inc. v. Telecomms. PremiumServs., Ltd., 156 F.3d 432, 435 (2d Cir. 1998)(jurisdiction over TCPA private cause of action existedin state courts); Erie Net, Inc. v. Velocity Net, Inc.,156 F.3d 513, 520 (3d Cir.1998) (“Congress intended torefer private litigants under the TCPA to statecourt”); Int’l Sci. & Tech. Inst., Inc. v. InacomCommunications, Inc., 106 F.3d 1146, 1152 (4th. Cir.1997) (finding exclusive state court jurisdiction overprivate TCPA actions).
20
Zelma v. Mkt. U.S.A., 778 A.2d 591, 601 (N.J. App.
Div.2001) (allowing private action in state court
without specific adoption of TCPA by state); Schulman
v. Chase Manhattan Bank, 268 A.D.2d 174, 177 (N.Y. Ct.
App. 2000) (rejecting opt-in construction because “such
an interpretation of the statute is inconsistent with
established principles governing state court
jurisdiction over claims based on federal laws”).7
These decisions from other states, in contrast to
the Superior Court’s decision, evaluated state court
jurisdiction over private TCPA claims in the proper
context of the Supremacy Clause:
• As courts of general jurisdiction, state
courts are presumed to have jurisdiction over
federally created causes of action unless
Congress dictates otherwise. See, e.g.,
8
Although two intermediate appellate courts havedeclined state court jurisdiction over TCPA claims,neither decision is persuasive. In Autoflex Leasing,Inc. v. Mfrs. Auto Leasing, Inc., the Texas appellatecourt held that the state legislature mustaffirmatively act or express its consent to state courtjurisdiction before state courts. Autoflex Leasing,Inc. v. Mfrs. Auto Leasing, Inc., 16 S.W.3d 815, 817(Tex. App. 2000). The court, however, “cited toseveral of the federal court TCPA decisions in error”and provided a “poorly reasoned opinion.” Kaufman v.ACS Systems, Inc., 110 Cal.App. 4th 886, 897 (Cal.App.2nd Dist., Div.1)(2003) (quoting Biggerstaff, StateCourt and the Telephone Consumer Protections Act of1991: Must States Opt-in? Can States Opt-out?, 33Conn.L.Rev. 407, 415 (2001)).
In R.A.Ponte Architects, Ltd. v. Investors’ Alert,Inc., 815 A.2d 816 (Md. App. 2003)(appeal to MarylandSupreme Court pending), the court of special appealsdeclined to adopt the reasoning of Autoflex, but heldthat no private right of action existed under the TCPAbecause the Maryland legislature had adopted
21
Int’l Science, 106 F.3d at 1151-52 (citing
Tafflin, 493 U.S. at 461-61).
• The TCPA does not contain the necessary
“clear statement” indicating that states need
not hear federal TCPA claims, or that the
states could generally decline jurisdiction
over TCPA claims. See, e.g., Condon, 855 So.
2d 644 (Fla. App. 2 Dist. 2003).
• The “otherwise permitted” language in the
TCPA is intended to accommodate state
procedural law, not require enabling
legislation. See, e.g., Id. 8
legislation barring unsolicited faxes but had limitedstanding to sue under that legislation to that state’sattorney general. In contrast, the Massachusettstelemarketing statute authorizes both public andprivate enforcement suits.
22
The most recent TCPA decision, from the Alabama
Court of Civil Appeals, highlights the fundamental
problem with the Superior Court’s “opt in” analysis.
In John Lary, d/b/a Internal Medicine Clinic, the court
stated:
The trial court, in granting thedefendants’ motion to dismiss, opined that“Congress cannot burden state courts withhearing cases arising out of federal law whenthere is no concurrent federal jurisdiction.” The holdings of our Supreme Court are to thecontrary: Congress may elect to limitjurisdiction over a claim arising underfederal law to federal courts, but when itdoes not choose to do so, Alabama courts havethe power and duty to adjudicate claimsarising under federal laws as well as statelaw.
. . . we conclude as have the majorityof other state courts considering thequestion, that a state’s legislative orjudicial authorities need not expressly “optin” in order for the courts of a state tohave jurisdiction to hear private civilaction under 47 U.S.C. §227(b)(3).
2003 WL 22463948 at *5.
9
Anticipating the establishment of the national Do NotCall registry, Section 7 of G. L. c. 159C provides thatthe Massachusetts Do Not Call list shall includeMassachusetts listings from any national databaseestablished by the FCC.
23
III. THE SUPERIOR COURT ERRONEOUSLY IGNORED THEMASSACHUSETTS LEGISLATURE’S EXPRESS ACKNOWLEDGMENTTHAT THE MASSACHUSETTS TELEMARKETING ACTSUPPLEMENTS EXISTING REMEDIES FOR TELEMARKETING,INCLUDING THE TCPA.
On July 31, 2002, the Massachusetts General Court
enacted G. L. c. 159C, the Massachusetts Telemarketing
Solicitation Act (“the Act”), which became effective
January 1, 2003. Among other things, the Act
prohibits:
i) unsolicited commercial facsimiles;
ii) unsolicited telephone sales calls that use arecorded message device; and
iii) unsolicited telephone sales calls toMassachusetts residents who have registeredfor the Massachusetts “Do Not Call” list,maintained by the Massachusetts Office ofConsumer Affairs and Business Regulation.
G. L. c. 159C, § 3.9 The Act authorizes enforcement
actions by both the Attorney General, G. L. c. 159C, §
8(a), and private parties:
A person who has received more than 1unsolicited telephonic sales call within a 12month period by or on behalf of the sameperson or entity in violation of this chaptermay: (i) bring an action to enjoin theviolation; (ii) bring an action to recoveractual monetary loss from such knowing
24
violation or to receive not more than $5,000in damages for such knowing violation,whichever is greater; or (iii) both suchactions.
G. L. c. 159C, § 8(b).
The trial court concluded that because G. L. c.
159C makes no reference to the TCPA, or a private right
of action under the TCPA, the Massachusetts legislature
“therefore chose not to afford access to the
Massachusetts courts by private citizens for violations
of the TCPA.” (Appendix p. 585). The Superior Court,
however, failed to consider Section 13 of the Act.
Section 13 provides:
The remedies, duties, prohibitions andpenalties provided in this chapter shall notbe exclusive and shall be in addition to allother causes of action, remedies andpenalties provided by law, including anyapplicable remedies pursuant to chapter 93A.
G. L. c. 159C, § 13 (emphasis supplied). Thus,
contrary to the Superior Court’s finding, the
Legislature unambiguously endorsed existing remedies
like the TCPA. It is a basic tenet of statutory
construction that the legislature is presumed to be
aware of all applicable statutes and law in the given
field of regulation. See, e.g., Commonwealth v.
MacLeod, 437 Mass. 286,290 (2002); Green v. Wyman-
Gordon Co., 422 Mass. 551, 554 (1996). Accordingly,
25
when the Legislature in 2002 acknowledged, and then
supplemented, all existing causes of action and
remedies, the Legislature in fact approved the private
right of action provided by the TCPA since 1991.
Especially in light of Section 13, the
Massachusetts Telemarketing Act confirms that
Massachusetts citizens enjoy rights under the TCPA, in
addition to their rights recently provided under
Massachusetts law.
IV. PRIVATE RIGHTS OF ACTION PLAY AN IMPORTANT ROLE INTHE MULTI-PRONGED ENFORCEMENT SCHEME ESTABLISHEDBY CONGRESS, AND HELP ENFORCE COMPLIANCE WITHTELEMARKETING LAWS.
Congress passed the TCPA “to protect the integrity
of the home and stop th[e] unwarranted invasion of
privacy” inherent in unsolicited telephone sales calls.
137 Cong. Rec. S. 16,204-01 (daily ed. Nov. 7, 1991,
1991 WL 229525 at *7 (Remarks of Sen. Hollings)
(Appendix pp. 181). In addition to authorizing federal
and state government enforcement in federal court, the
TCPA’s private right of action provides legal recourse
to individuals directly affected by the invasive
telemarketing outlawed by the TCPA. Legislative
history shows that Congress acted to protect the
interests of individual consumers against the dramatic
26
increase in telemarketing. For instance, Congress
found in 1991 that:
• over 30,000 businesses actively telemarketgoods and services to business andresidential customers (Pub.L.No. 102-243,§2(2), 105 Stat. 2394 (1991));
• more than 300,000 telephone solicitors callmore than 18,000,000 Americans every day (Id.§2(3));
• consumers are outraged at the proliferationof intrusive, nuisance calls to their homesfrom telemarketers; unrestrictedtelemarketing can be an intrusive invasion ofprivacy and a risk to public safety (Id. §2(5)); and
• “Federal law is needed to control residentialtelemarketing practices.” (Id. §2(7)).
Congress likewise found that unsolicited faxes
interfere with business operations, unfairly forced the
fax recipient to bear a portion of the advertiser’s
costs, and waste the recipient’s time, paper and
equipment. Kaufman, 110 Cal.App. 4th at 898 (Cal.App.
2nd Dist., Div. 1)(2003). The TCPA thus provides
consumers the right to obtain damages, actual or
statutory, for those unsolicited fax advertisements.
47 U.S.C. § 227(b)(3).
Since 1991, the magnitude of telemarketing in the
United States has skyrocketed. According to the FCC,
commercial telemarketers now complete over 16 billion
calls a year. 68 Fed.Reg. 4580, 4630 n. 591.
27
Telemarketing calls, completed and abandoned, amount to
as many as 104 million calls a day – a “fivefold”
increase in the last decade. Rules & Regulations
Implementing the Telephone Consumer Protection Act of
1991, Report and Order, 18 FCC Rcd. 14014, 14054 ¶66.
Consumers in America, including Massachusetts,
apparently appreciate the protection from unwanted
telemarketing afforded by the TCPA: more than 50
million Americans signed up for the national Do Not
Call registry maintained by the FCC and FTC. See
Federal Trade Commission Press Release (September 17,
2003, <http://www.ftc.gov/opa/2003/09/dncnumbers030917.
htm>.
With more than 100 million telemarketing calls a
day, even if a small portion are unlawful under the
TCPA and Massachusetts law, hundreds of thousands of
telemarketing violations occur each day. While
government enforcement agencies, like the Massachusetts
Attorney General, have brought enforcement actions
under the TCPA and/or chapter 159C, not every violator
will be subject to enforcement by the FCC, the
Massachusetts Attorney General, or other State
Attorneys General.
28
The TCPA accounts for this reality, providing a
private right of action as an adjunct to government
enforcement. Congress provided citizens the right to
protect themselves against unwanted telemarketing and
blast-faxing. The Massachusetts legislature reached
the same policy determination when it combated
telemarketing, providing an individual cause of action
to supplement the Attorney General’s enforcement
authority. Under these statutes, if a consumer has
received a telephone call or fax in violation of the
law, he or she may bring suit and enforce his or her
statutory rights.
Particularly because residential privacy and
consumer harm served as the impetus for the TCPA, the
TCPA’s private right of action is an integral aspect of
the statute’s enforcement scheme. Massachusetts
citizens – like citizens throughout the country – are
entitled to that private right of action not only so
they enjoy the rights and protections provided by
Congress, but to carry out the TCPA’s three-pronged
mechanism to enforce compliance with telemarketing
laws. Both legal precedent and the legislative
policies reflected in the TCPA and chapter 159C demand
reversal of the Superior Court’s decision.
29
CONCLUSION
For the reasons set forth above, this court should
reverse the decision of the Superior Court and rule
that Massachusetts citizens may bring claims under the
TCPA in Massachusetts courts.
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS
By its attorney,THOMAS F. REILLYATTORNEY GENERAL
By: ______________________________Christopher K. Barry-Smith,BBO #565698April C. English, BBO #652053Assistant Attorneys General
Office of the Attorney GeneralOne Ashburton PlaceBoston. Massachusetts 02108(617) 727-2200
DATE: February 15, 2004
CERTIFICATE OF SERVICE
The undersigned, Christopher K. Barry-Smith, herebycertifies that on February 13, 2004, I served the foregoing Briefof the Commonwealth of Massachusetts as Amicus Curiae on counselfor each of the parties in the above action, by first classmailing the motion to Matthew McCue, Esq. and Edward Broderick,Esq., counsel for appellants, and Stephen Rahavy, Esq. andWilliam D. Chapman, Esq., counsel for appellees.
_____________________________Christopher K. Barry-SmithAssistant Attorney General