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