Recent Developments in New York Law

By Danile, Jeffrey; Viggiano, Jeanette M. | St. John's Law Review, Spring 1999 | Go to article overview

Recent Developments in New York Law


Danile, Jeffrey, Viggiano, Jeanette M., St. John's Law Review


Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd.: The Second Circuit concludes that New York State courts have exclusive jurisdiction over private rights of action asserted under 227 of the Federal Telephone Consumer Protection Act of 1991.

In 1991, Congress explicitly prohibited the use of telecommunications technology1 by the telemarketing industry2 to forward unsolicited advertisements to consumers.3 Congress recognized that the facsimile ("fax") machine's basic design, to process and print any message sent to its number, allowed the recipient of unsolicited fax advertisements to be harmed in two direct ways. "First, it shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient's facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.4' To prevent such harm, Congress prohibited telemarketers from sending unsolicited advertisements via fax machine5 and provided private individuals and entities with a right of action to seek both an injunction and damages against those sending future advertisements.6

In Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd.,7 the defendant, Telecommunications Premium Services ("TPS"), purchased a list containing the telephone numbers of over 66,000 fax machines used by businesses in the metropolitan tristate area,8 including that of the plaintiff, Foxhall Realty Law Offices, Inc. ("Foxhall").9 TPS sent unsolicited fax advertisements to Foxhall and other businesses whose fax numbers appeared on the list.10 Foxhall filed a class action suit in federal court on behalf of those New York residents who received fax advertisements from TPS without prior consent.11 The complaint alleged that TPS's action violated 227 of the Telephone Consumer Protection Act of 1991 ("TCPA"), which provides, in pertinent part, that "use [of] any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine" is prohibited.12

Under review in Foxhall Realty, was the proper interpretation of the word "may"13 within 227(b)(3) that creates the private right of action.14 The provision states:

A person or entity may, if otherwise permitted by the laws or rules of [sic] 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.15

More precisely, the court sought to determine whether Congress, in choosing the word "may,"16 intended to create concurrent federal and state jurisdiction, or place exclusive authority with state courts to decide private actions brought under the TCPA.17 The United States District Court for the Southern District of New York granted TPS's motion to dismiss, and held that Congress did not intend to confer upon federal courts the authority to decide the private claims.18 The district court found that federal courts, because they are of specific jurisdiction,19 must be granted the power by Congress to review claims arising under a federal act.20 The absence of language denying the federal courts jurisdiction, however, does not prove that Congress intended the federal courts to adjudicate claims arising under the TCPA. The Second Circuit Court of Appeals affirmed,21 and in so doing, "reach[ed] `the somewhat unusual conclusion that state courts have exclusive jurisdiction over a cause of action created by' a federal [act]."22 As a result, private individuals and entities are precluded from seeking redress in federal court for injuries resulting from violations of the "junk" fax provision of the TCPA.23

It is submitted that the Second Circuit Court of Appeals erred when it held that state courts possess the exclusive right to adjudicate private claims brought under the TCPA. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Recent Developments in New York Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.