THE CHAIR KING, INC., CHAIR KING, S.A., INC., JEROME KOSOY, M.D., M.E. FORD AND ASSOCIATES, BEAUTIQUE, INC., DISCOVERY SERVICES OF TEXAS, INC., VANTAGE SHOE WAREHOUSE, INC., COUNSELOR SYSTEMS, INC., P

SUPREME COURT CASES

Laws-info.com » Cases » Texas » Supreme Court » 2006 » THE CHAIR KING, INC., CHAIR KING, S.A., INC., JEROME KOSOY, M.D., M.E. FORD AND ASSOCIATES, BEAUTIQUE, INC., DISCOVERY SERVICES OF TEXAS, INC., VANTAGE SHOE WAREHOUSE, INC., COUNSELOR SYSTEMS, INC., P

State: Texas

Court: Supreme Court

Docket No: 04-0570

Case Date: 02/03/2006

Judge: Harriet O Neill

Plaintiff: THE CHAIR KING, INC., CHAIR KING, S.A., INC., JEROME KOSOY, M.D., M.E. FORD AND ASSOCIATES, BEAUTIQU

Defendant: GTE MOB

Preview:THE CHAIR KING, INC., CHAIR KING, S.A., INC.,
JEROME KOSOY, M.D., M.E. FORD AND
ASSOCIATES, BEAUTIQUE, INC., DISCOVERY
SERVICES OF TEXAS, INC., VANTAGE SHOE
WAREHOUSE, INC., COUNSELOR SYSTEMS, INC.,
POPE AND BOOTH, P.C., JEFFREY K. MUSKER,
D.C. v. GTE MOBILNET OF HOUSTON, INC. AND
CHICK-FIL-A, INC. (Majority)
IN THE SUPREME COURT OF TEXAS
No. 04-0570
The Chair King, Inc., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc.,
Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C.,
Jeffrey K. Musker, D.C., and Pope Escrow Company, Petitioners,
v.
GTE Mobilnet of Houston, Inc., And Chick-Fil-A, Inc., Respondents
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
Argued on April 14, 2005
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Justice O Neill delivered the opinion of the Court.
Justice Wainwright did not participate in the decision.
The suit underlying this appeal complains of unsolicited faxes sent in violation of the federal Telephone Consumer
Protection Act, 47 U.S.C. 227 ( TCPA ), which grants those who receive illegal faxes a private cause of action in state
court if otherwise permitted by the laws or rules of court of a State. 47 U.S.C. 227(b)(3). Texas did not expressly
permit a private right of action for unsolicited faxes until September 1, 1999, when the Legislature amended the
Business and Commerce Code to allow parties to bring suit in state court for TCPA violations. Act of May 26, 1999,
76th Leg., R.S., ch. 635, 1, 1999 Tex. Gen. Laws 3203 (current version at Tex. Bus. & Com. Code 35.47(f)). We must
decide whether the faxes at issue in this case, which were sent before September 1, 1999, are actionable in Texas state
courts under the TCPA. We conclude that they are not, and reverse and render judgment against the recipients. I.
Background
Beginning in 1992, The Chair King, Inc., and others // (collectively plaintiffs or recipients ) complain that they began
to receive illegal faxes from various companies advertising their products. They originally filed suit in federal court,
but the court dismissed the case for lack of subject-matter jurisdiction. // Chair King, Inc. v. Houston Cellular Corp.,
131 F.3d 507, 509 (5th Cir. 1997). The plaintiffs then filed this suit in state court against a number of defendants //
alleging a private damage claim under the TCPA, negligence, negligence per se, invasion of privacy, trespass to
chattels, gross negligence, and conspiracy among the senders. The trial court granted the defendants joint and
individual summary-judgment motions and denied the plaintiffs motion for partial summary judgment. The plaintiffs
settled with various defendants during the course of the proceedings, leaving only GTE Mobilnet of Houston, Inc. (
GTE Mobilnet ) and Chick-Fil-A, Inc. ( Chick-Fil-A ) as defendants before the court of appeals.
The court of appeals affirmed the trial court s judgment in part, and reversed and remanded in part. 135 S.W.3d 365.
Specifically, the court affirmed the trial court s summary judgment on all of the common-law claims, on all claims
against Chick-Fil-A after applying Texas two-year statute of limitations, and on certain plaintiffs TCPA claims against
GTE Mobilnet that the court considered barred by limitations. Id. at 396-97. The court reversed the trial court s
judgment as to the remaining plaintiffs TCPA claims against GTE Mobilnet, // which were remanded for further
proceedings. Id.
Both sides petitioned this Court for review, the plaintiffs challenging the court of appeals determination of the
limitations issue and the defendants contending, inter alia, that there was no TCPA private right of action cognizable in
Texas courts until the Legislature enacted enabling legislation in 1999. Alternatively, defendants claim they cannot be
liable for faxes transmitted by independent advertising companies acting at the behest of independent retailers. We
granted the parties petitions for review to consider the TCPA s application and related issues. II. The Telephone
Consumer Protection Act
A. History
Congress enacted the Telephone Consumer Protection Act in 1991 by amending the Communications Act of 1934.
Pub. L. No. 102-243, 105 Stat. 2394, (codified as amended at 47 U.S.C. 227). The TCPA s purposes were to protect
the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone
calls . . . and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic
dialers. S. Rep. No. 102-178, at 1 (1991), reprinted in 1991 U.S.C.C.A.N.1968, 1968. The legislation was intended to
address a growing number of consumer complaints related to the use of automated telephone equipment to make
unsolicited telephone calls and faxes. That growth was spurred by a dramatic decrease in the cost of long-distance
service, which in turn reduced the expenses associated with telemarketing. Id. at 2, reprinted in 1991 U.S.C.C.A.N.
1968, 1969-70.
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Before the TCPA s enactment, many states had promulgated regulations aimed at limiting unsolicited intrastate
telemarketing, but constitutional constraints prevented them from reaching interstate communications. Id. at 3,
reprinted in 1991 U.S.C.C.A.N. 1968, 1970 (noting States do not have jurisdiction over interstate calls. Many States
have expressed a desire for Federal legislation to regulate interstate telemarketing calls to supplement their restrictions
on intrastate calls. ). By the time the TCPA became law, over forty states had legislatively limited the use of
automatic-dialer recorded-message players or otherwise restricted telemarketing. // Id., reprinted in 1991 U.S.C.C.A.N.
1968, 1970. But given that state regulation reached only intrastate communications, consumer complaints to the
Federal Communications Commission (FCC) soared. Id., reprinted in 1991 U.S.C.C.A.N. 1968, 1970. The TCPA
quickly followed.
B. Statutory Framework
The TCPA presents what has been described as an unusual constellation of statutory features. Chair King, 131 F.3d at
512. On one hand, the Act creates a federal private right of action, but on the other it confers exclusive jurisdiction on
state courts to entertain it. Id. The TCPA does contain an exclusive federal enforcement component, authorizing state
attorneys general to bring civil actions in federal court on behalf of their state s residents to obtain injunctive relief
against unauthorized telephone calls and facsimiles and to recover monetary damages. 47 U.S.C. 227 (f)(1)-(2). For
such actions the TCPA authorizes the FCC to intervene as of right, to be heard in all such matters, and to file petitions
for appeal. 47 U.S.C. 227(f)(3). But for purposes of private enforcement and redress, state-court jurisdiction is
exclusive.
Under the TCPA, it is illegal to use any telephone facsimile machine, computer or other device to send an unsolicited
advertisement to a telephone facsimile machine. 47 U.S.C. 227(b)(1)(c). Section 227(b)(3) creates a private right of
action for recipients of unsolicited faxes to obtain monetary and injunctive relief, as follows:
Private Right of Action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in
an appropriate court of that State
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such
violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such
violation, whichever is greater, or
(C) both such actions.
Id. 227(b)(3) (emphasis added). It is the import of the statutory proviso if otherwise permitted by the laws or rules of
court of a State that the parties dispute and that courts have struggled to interpret.
The defendants claim the right of action that the TCPA affords is not self-implementing; that is, the private cause of
action the Act creates is not immediately enforceable in Texas courts without state enabling legislation. For the
plaintiffs to bring such a claim, defendants contend, Texas laws or rules of court must otherwise permit it, and Texas
did not until September 1, 1999, when the Legislature amended the Texas Business and Commerce Code to permit
private TCPA claims. // Act of May 26, 1999, 76th Leg., R.S., ch. 635, 1, 1999 Tex. Gen. Laws 3203, 3203 (codified
as amended at Tex. Bus. & Com. Code 35.47(f)). Defendants argument mirrors what has sometimes been referred to as
the opt-in approach to the TCPA, in effect requiring some type of affirmative state buy-in before the federally-created
private right of action is cognizable in state court.
The plaintiffs take a contrary view. Because the TCPA is federal law, they claim, state courts of general jurisdiction
are inherently empowered, and indeed required, to enforce it. See Tafflin v. Levitt, 493 U.S. 455, 459-61 (1990).
According to plaintiffs, the TCPA created an immediately actionable private right of action in state court and there was
no need for state enabling legislation. To support their position, plaintiffs posit two interpretations of the TCPA
commonly known as acknowledgment and opt-out.
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For reasons that we will explain, we believe the TCPA s plain language, purpose, and historical context favor the opt-
in interpretation. We begin by examining all three interpretive approaches and the reasoning behind them. C.
Interpreting the Statutory Proviso
1. The Acknowledgment Approach
The acknowledgment position that some courts have adopted interprets the Supremacy Clause of the United States
Constitution to require states to provide a forum for private TCPA damage claims with no ability to decline. See R.A.
Ponte Architects, Ltd. v. Investors Alert, Inc., 857 A.2d 1 (Md. 2004); Consumer Crusade, Inc. v. Affordable Health
Care Solutions, Inc., 2005 Colo. App. LEXIS 1354 (Colo Ct. App. Aug. 25, 2005); U.S. Const. art. VI, cl. 2 ( This
Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby . . .                                                                                             . ). The focal point of the acknowledgment approach is the general rule that a state
may not decline to enforce a federal cause of action:
[T]he Constitution and laws passed pursuant to it are as much laws in the State as laws passed by the state legislature.
The Supremacy Clause makes those laws the supreme Law of the Land, and charges state courts with a coordinate
responsibility to enforce that law according to their regular modes of procedure.
Howlett v. Rose, 496 U.S. 356, 367 (1990). According to this view, no state enabling legislation is necessary for
parties to assert private TCPA causes of action, and states may not decline to entertain them. The presumption of state-
court jurisdiction over federal causes of action can be rebutted only by an explicit statutory directive, by unmistakable
implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests,
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981), and courts espousing the acknowledgment view have
found nothing in the TCPA s language or legislative history to rebut the presumption. See, e.g., Consumer Crusade,
2005 Colo. App. LEXIS 1354, at *9.
It is, of course, generally true that states may not decline to recognize or enforce federal law. Howlett, 496 U.S. at 371.
But the federal law that states are required to enforce must be applied according to its terms. Had the TCPA simply
provided that [a] person or entity may . . . bring . . . an action based on a [TCPA] violation, the states constitutional
obligation under the Supremacy Clause to entertain such claims would be irrefutable. But Congress chose to qualify
the private TCPA right of action it created by including the proviso if otherwise permitted by the laws or rules of court
of a State. 47 U.S.C. 227(b)(3). Failure to give effect to the statutory proviso would itself run the risk of violating the
Supremacy Clause by refusing to apply the federal right as written.
Under the acknowledgment interpretation, the TCPA s if otherwise permitted language merely acknowledges states
rights to structure their court systems and apply neutral state-court procedures to federal causes of action. See, e.g.,
Consumer Crusade, 2005 Colo. App. LEXIS 1354, at *10 (stating no state can refuse to entertain a private TCPA
action, but a state is not compelled to adopt special procedural rules for such actions ). Courts adopting this
interpretation have relied heavily on a speech by the TCPA s author, Senator Ernest Hollings of South Carolina, when
he introduced the substitute bill containing the private right of action eventually codified at 47 U.S.C. 227(b)(3):
The substitute bill contains a private right-of-action provision that will make it easier for consumers to recover
damages from receiving these computerized calls. The provision would allow consumers to bring an action in State
court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the
States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to
determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions,
preferably in small claims court. The consumer outrage at receiving these calls is clear. Unless Congress makes it
easier for consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue.
Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The
amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would
defeat the purposes of the bill if the attorneys costs to consumers of bringing an action were greater than the potential
damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.
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137 Cong. Rec. 30821-22 (1991) (statement of Sen. Hollings). Senator Hollings s speech on the day the substitute bill
was introduced is the only available legislative history concerning the private-right-of-action provision.
We do not find the argument that Senator Hollings s speech compels an acknowledgment interpretation persuasive.
While the statement may have accurately reflected Senator Hollings s understanding of the private right of action,
there can be no certainty that it reflected the view of the entire Congress. See Gen. Chem. Corp. v. De La Lastra, 852
S.W.2d 916, 923 (Tex. 1993) ( [T]he intent of an individual legislator, even a statute s principal author, is not
legislative history controlling the construction to be given a statute. ). And even if we were to presume that Senator
Hollings s speech accurately captured congressional intent, it can just as fairly be read to support an opt-in approach.
By stating his expectation that the States will act reasonably in permitting their citizens to go to court to enforce this
bill, Senator Hollings implies that states must act in an affirmative manner before the TCPA private damage claim is
cognizable in state court. In sum, we believe that Senator Hollings s remarks are of limited interpretive value.
The acknowledgment approach to interpreting the TCPA s if otherwise permitted proviso presents a number of
problems. For one, it renders certain language in the TCPA doubly redundant. Chair King, 135 S.W.3d at 381. State
district courts of general jurisdiction are presumed to have adjudicative power over federal statutory private damage
claims unless Congress specifically decides otherwise, so there would be no reason for Congress to import that general
principle into the statutory proviso when it does not do so in other federal statutes. See id. Nevertheless, Congress did
choose to acknowledge this general principle elsewhere in the TCPA by stating that suit may be brought in an
appropriate court of that State. 47 U.S.C. 227(b)(3). Interpreting the if otherwise permitted provision to have the same
meaning would be redundant and risk rendering the words meaningless. Chair King, 135 S.W.3d at 382.
The strongest argument supporting the acknowledgment approach emphasizes the statutory proviso s reference to court
rules: if otherwise permitted by the laws or rules of court of a State . . .                                                    . 47 U.S.C. 227(b)(3) (emphasis added). Rules
of court generally refer to the procedures courts implement to conduct official business. See, e.g., Black s Law
Dictionary 369 (7th ed. 1999) (defining court rules as [r]egulations having the force of law governing practice and
procedure in the various courts ). Plaintiffs assert that by referencing rules of court, which generally do not confer
subject-matter jurisdiction over causes of action, Congress chose to acknowledge states rights to independently
administer their own courts and, by negative implication, signaled no intent to require affirmative legislative action at
the state level before a party could exercise the private right of action. Any other interpretation, plaintiffs claim, would
render the rules of court language mere surplusage. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.
2000). However, applying an acknowledgment interpretation to the statutory proviso is no less problematic. As we
have said, the same rule against surplusage is equally applicable to the acknowledgment interpretation. See Chair King,
135 S.W.3d at 381 (stating it would be redundant and risk rendering the words meaningless to interpret the if otherwise
permitted clause to have the same meaning [as the clause allowing suit in an appropriate court of that State ] ).
Moreover, if the statutory reference to rules of court was intended to imply no state option over allowing the federally
created claim, the if otherwise permitted by the laws . . . of a State language would be rendered surplusage. 47 U.S.C.
227(b)(3) (emphasis added); see Spradlin, 34 S.W.3d at 580.
In sum, we see no clear indication in either the statutory language or the legislative history that would indicate
Congress intended to unconditionally mandate a private TCPA damage claim in state court that the states could not
choose to decline. Like the court of appeals, we reject the acknowledgment interpretation of the TCPA that some
courts have followed.
Having determined that the statutory proviso was intended to give the TCPA some conditional effect, we must decide
whether Congress intended for the Act to apply unless a state opted out, or only if a state opted in.
2. The Opt-out Approach
The opt-out interpretation reads the TCPA to immediately authorize private rights of action in state court without the
necessity of affirmative state action, but allows states to legislatively decline to entertain them. To date, this appears to
be the majority view of the relatively few courts that have had occasion to decide the issue. See Mulhern v. MacLeod,
808 N.E.2d 778 (Mass. 2004);Lary v. Flasch Bus. Consulting, 878 So. 2d 1158 (Ala. Civ. App. 2003); Condon v.
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Office Depot, Inc., 855 So. 2d 644 (Fla. Dist. Ct. App. 2003); Kaufman v. ACS Sys., Inc., 2 Cal. Rptr. 3d 296 (Cal. Ct.
App. 2003); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907 (Mo. 2002); Zelma v. Market U.S.A., 778
A.2d 591 (N.J. Super. Ct. App. Div. 2001); Aronson v. Fax.com, Inc., 51 Pa. D. & C.4th 421 (Ct. Com. Pl. 2001);
Hooters of Augusta, Inc. v. Nicholson, 537 S.E.2d 468 (Ga. Ct. App. 2000); Schulman v. Chase Manhattan Bank, 710
N.Y.S.2d 368 (N.Y. App. Div. 2000). Of the courts that follow the opt-out position, none has yet determined that a
state has actually opted out of providing a forum for private TCPA claims.
Until this case, only one court of appeals in Texas has had occasion to interpret section 227(b)(3) s if otherwise
permitted proviso, // and it determined that the statute s plain language compelled an opt-in interpretation; that is, a
state must affirmatively act before the federally-created claim is cognizable in its courts. Autoflex Leasing, Inc. v.
Mfrs. Auto Leasing, 16 S.W.3d 815, 817 (Tex. App. Fort Worth 2000, pet. denied). The court held that the plain and
ordinary meaning of the statutory proviso indicates Congress intended the states to pass legislation or promulgate court
rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state
courts. Id. Because Texas did not authorize a private right of action in state court under the TCPA until September 1,
1999, and the faxes at issue in Autoflex were sent before the state legislation became effective, the court affirmed the
trial court s judgment dismissing the plaintiff s claim. Id. at 817-18.
In this case, the court of appeals rejected the Autoflex interpretation in favor of the opt-out approach for several
reasons, some of which have similarly led other courts along the same path. Chair King, 135 S.W.3d at 379. Those
reasons, generally, are that the opt-out interpretation gives greater deference to the Supremacy Clause, id. at 382, and
the opt-in position is inefficient and ineffective considering Congress s intention to help states regulate unsolicited
interstate faxes. Id. at 380. We examine each of these considerations in turn.
The court of appeals rejected the acknowledgment notion that the Supremacy Clause mandates unconditional state
enforcement of private TCPA damage claims because of internal inconsistencies in the statutory language such an
interpretation would create. Id. at 381-82. If Congress wished to unconditionally mandate TCPA enforcement in state
courts, the court of appeals explained, it could easily do so by amending the TCPA and preempting state statutes to the
contrary. Id. at 382. But at the same time, by construing the TCPA private right of action as mandatory unless a state
legislatively declines enforcement, it appears the court of appeals attempted to give a nod to Supremacy Clause
concerns. Id. Of course, Congress s ability to clarify the extent of its mandate by amending the statute is the same
whether the proviso is construed as acknowledgment, opt-out, or opt-in. More importantly, as we have said, the TCPA
defines the federal cause of action with a prominent proviso; giving effect to the proviso that Congress created cannot
run afoul of the Supremacy Clause. Having concluded that Congress intended the statutory proviso to have some
conditional effect, be it opt-out or opt-in, we fail to see how Supremacy Clause concerns are implicated at all.
The court of appeals also reasoned that the opt-in approach does not comport with Congress s purpose to help states
regulate and penalize illegal fax advertisements by overcoming their inability to regulate interstate faxes. Id. at 380.
The court posited that there would be no reason for Congress to create a statutory remedy that would allow states to
regulate illegal interstate faxes but at the same time prohibit them from doing so until the state enacted enabling
legislation; such a result would be, the court concluded, inefficient and ineffective. Id. (citing Aronson, 51 Pa. D. &
C.4th at 429).
This interpretation, though, ignores the unique nature of the federal right of action the TCPA created. Rather than
make federal court jurisdiction over private TCPA claims concurrent with that of state courts, Congress chose to make
the private remedy available exclusively through state-court proceedings. Such a conscious decision was undoubtedly
due, at least in part, to the estimated eighteen million telemarketing calls made daily. Telephone Consumer Protection
Act of 1991, Pub. L. No. 102-243, 2(3), 105 Stat. 2394 (1991); see Int l Sci. & Tech. Ins., Inc. v. Inacom Commc ns,
Inc., 106 F.3d 1146, 1157 (4th Cir. 1997). Understandably, Congress opted to close federal courts to the millions of
potential private TCPA claims since the overwhelming locus of regulation was centered in the states. Int l Sci., 106
F.3d at 1154. It is not unreasonable to presume, then, that Congress recognized the potential burden on state courts
these claims could present. Congress acted rationally in both closing federal courts and allowing states to close theirs
to the millions of private actions that could be filed if only a small portion of each year s 6.57 billion telemarketing
transmissions were illegal under the TCPA. Id. Considering the potential burden on state court resources a flood of
private TCPA claims might present, it is logical that Congress would choose to allow the states themselves to have
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some voice in the matter. Id. (holding that private actions under the TCPA may be permitted in some state courts and
prohibited in others, as determined by the states, does not render the TCPA violative of the equal protection component
of the Fifth Amendment s Due Process Clause ) (emphasis added). States thus retain the ultimate decision of whether
TCPA actions will be cognizable in their courts. Id. at 1158.
We think it significant that the reason Congress created the TCPA private right of action at all was out of solicitude for
states which were thwarted in their attempts to stop unwanted telemarketing. Id. at 1154. Congress noted in the TCPA:
Over half the States have statutes restricting various uses of the telephone for marketing, but telemarketers can evade
their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing
practices. Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 2(7), 105 Stat. 2394 (1991). The principal
motivation behind the TCPA strongly suggests that its remedies were meant to enhance the states existing attempts to
regulate unsolicited calls and faxes. As the Fourth Circuit noted, although Congress created the private TCPA action, it
was from the beginning a cause of action in the states interest. Int l Sci., 106 F.3d at 1154. There is strong evidence
that Congress wanted to assist state regulation in reaching interstate communications if a state so desired, not to create
an independent regulatory framework for a potential flood of individual state-court lawsuits.
In sum, we do not believe the Supremacy Clause concerns and purported inefficiencies that some courts have
perceived in adopting an opt-out approach are valid in light of the explicit statutory proviso and the TCPA s purpose to
supplement state efforts to regulate unsolicited faxes. Instead, we consider the Congressional intent underlying the
TCPA, as expressed in the statutory proviso and legislative history, to favor the opt-in interpretation.
3. The Opt-in Interpretation
We must begin with the text of the statutory proviso. See New York State Conf. of Blue Cross and Blue Shield Plans
v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) (in determining congressional intent, analysis begins with interpretation
of the statutory text and move[s] on, as need be, to the structure and purpose of the Act in which it occurs ); Mitchell
Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997) (noting that in construing a statute, a court s primary
objective is to give effect to the Legislature s intent by considering the plain meaning of the enactment). Our challenge
in this case is discerning the level of deference to the states embodied in the phrase if otherwise permitted by the laws
or rules of court of a State. 47 U.S.C. 227(b)(3).
We believe the requirement that states must otherwise permit a private right of action before a TCPA claim is
cognizable in their courts can only mean that the TCPA alone does not create an immediately enforceable right. The
term otherwise denotes (1) in a different way or manner: DIFFERENTLY; (2) in different circumstances: under other
conditions. Webster s Third New International Dictionary (1961). And permit is defined as (1) to consent to expressly
or formally: grant leave for or the privilege of: ALLOW, TOLERATE; (2) to give (a person) leave: AUTHORIZE; . . .
(4) to make possible. Id. Use of the words otherwise permitted, then, suggests the necessity of affirmative state action
to activate the TCPA s private cause of action.
Congressional intent underlying the TCPA also supports an opt-in reading of the statutory proviso. As we have said,
the federal legislation was intended to supplement state regulation, and Congress was surely conscious that state courts
could suddenly be burdened with a potential flood of unsolicited-fax suits. It is clear that Congress intended significant
deference to states, allowing them to determine whether to entertain the private TCPA claims that Congress decided to
make exclusively actionable in state court. Int l Sci., 106 F.3d at 1156. // We believe the if otherwise permitted
language Congress crafted in creating the federal TCPA private right of action indicates deliberate deference to an area
of uniquely state concern. Id.
It is true, as the plaintiffs assert, that the statute s intended and most important purpose [is] to swiftly wipe out
unsolicited facsimile advertising. But we believe Congress hinged the swiftness of the federal legislation on the
willingness of states to bear the burden and cost of overseeing these claims. After all, the TCPA provides a federal
enforcement mechanism by which state attorneys general may protect residents if the state wishes to direct state
resources elsewhere:
If state residents would prefer their government to devote its attention and resources to problems other than those
deemed important by Congress, they may choose to have the Federal Government rather than the State bear the
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expense [and administrative burden] of [the TCPA] . . .                                                                         . Where Congress [thus] encourages state regulation rather than
compelling it, state governments remain responsive to the local electorate s preferences; state officials remain
accountable to the people.
Int l Sci., 106 F.3d at 1158 (quoting New York v. United States, 505 U.S. 144, 168 (1992)). Thus, that the Texas
Legislature did not specifically authorize a private right of action for unsolicited faxes until 1999 does not mean that
Texas residents were without recourse; they were free to encourage the Texas Attorney General to pursue TCPA
injunctive and other relief on their behalf. See 47 U.S.C. 227(f)(1)-(2).
Plaintiffs further contend an opt-in interpretation would render the TCPA s preemption language meaningless. Section
227(e) provides that the TCPA does not preempt state laws imposing more restrictive requirements or even prohibiting
the use of telemarketing equipment. 47 U.S.C. 227(e). Plaintiffs claim the negative implication suggests that less
restrictive penalties are indeed preempted. If the TCPA were inoperative absent enabling legislation, the plaintiffs
assert, then the TCPA could not preempt less restrictive state law and the section would be rendered meaningless. Of
course, the same argument would apply to the opt-out approach; if a state opted out then the preemption language
would be equally meaningless. Only an acknowledgment interpretation, which we have rejected, would give full effect
to subsection (e) if in fact it were intended to preempt less restrictive state penalties. But we do not agree with the
plaintiffs reading of section 227(e).
First, we note that section 227(e)(1) is specifically titled State law not preempted. 47 U.S.C. 227(e) (1) (emphasis
added). Furthermore, Congress s intent to supplement state legislation explains why the preemption concern would
have focused on more aggressive regulation by the states. See Chair King, 131 F.3d at 513 ( By creating a private right
of action in state courts, Congress allowed states, in effect, to enforce regulation of interstate telemarketing activity. ).
Congress clearly did not intend the TCPA to establish a ceiling if states decided to be more aggressive in their
approach, but it does not necessarily follow that Congress intended the TCPA to be a mandatory floor for private
enforcement whether or not a state chose to allow it. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ( In all
preemption cases, and particularly in those [where] Congress has legislated . . . in a field which the States have
traditionally occupied, we start with the assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest purpose of Congress. ); Bethlehem Steel Co. v.
New York State Labor Relations Bd., 330 U.S. 767, 780 (1947) (internal citations omitted) ( Any indulgence in
construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to
assure full federal authority, completely displacing the States. ). We reject the plaintiffs contention that the TCPA s
limited preemption language forecloses an opt-in interpretation.
III. ConclusionWe conclude that, because Texas did not otherwise permit a cause of action for the receipt of
unsolicited fax advertisements until September 1, 1999, and the faxes at issue in this case were sent before that date,
plaintiffs have no actionable claim. Because this conclusion is dispositive, we do not reach the parties other arguments
involving the limitations period applicable to TCPA claims and the application of Texas agency law under the facts
presented here. Accordingly, we reverse the judgment of the court of appeals and render judgment in favor of GTE
Mobilnet.
Harriet O Neill
Justice
OPINION DELIVERED: February 3, 2006.
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