Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes
Miller, Hilary B., Bigger, Robert R., Federal Communications Law Journal
They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall. .... It is telephone terrorism, and it has got to stop.(1)
In 1991, with the passage of the Telephone Consumer Protection Act of 1991 (TCPA),(2) Congress took the first significant step in curbing what many perceived as an onslaught of telemarketing that had invaded Americans homes. However, what began as a straightforward remedy to telephone terrorism resulted in a less than perfect example of legislative clarity.
The TCPA presents "an unusual constellation of statutory features."(3) It provides a federal right to be free from certain types of telephone solicitations and facsimiles (faxes), but it does not permit a victim to enforce that right in federal court.(4) The TCPA's principal enforcement mechanism is a private suit, but the TCPA does not permit an award of attorney fees to the prevailing party, as do most other private attorney general statutes.(5) The TCPA is practically incapable of forming the basis of a class action,(6) even though, in theory, it provides relief for large numbers of victims of identical violations resulting from identical acts by identical actors. In a final and ironic twist of legislative compromise, although the TCPA proscribes a wide range of offensive conduct, Congress intended for private enforcement actions to be brought by pro se plaintiffs in small claims court and practically limited enforcement to such tribunals.(7)
Lack of access to federal courts and to the class action form of litigation, the nominal harm and imperfect prosecution (almost exclusively by pro se plaintiffs) essentially insures that few TCPA cases will result in reasoned appellate decisions. Moreover, state small claims courts (over which Holmses, Hands, and Cardozos rarely preside) are poor forums for producing uniform interpretations of federal law. The problem has been exacerbated by a dearth of cogent law review scholarship and analysis to aid construction, producing a body of divergent and conflicting decisions. This Article seeks to promote uniform construction and application of the TCPA.(8)
Because the TCPA does not preempt and Congress expressly intended it to coexist with state telemarketing law, there has been confusion regarding the application of the TCPA to intrastate telemarketing calls and fax advertisements. The analysis has two branches. First, did Congress intend the TCPA to cover intrastate calls? Second, if Congress intended the TCPA to cover intrastate calls, does Congress have the constitutional authority to regulate calls and faxes that are purely intrastate in nature? The answer to both of these questions is an unqualified "yes."
II. RECENT DECISIONS
Chair King, Inc. v. Houston Cellular Corp.,(9) a later vacated unpublished federal district court decision, was the first case to address the question of whether the TCPA applies to intrastate telemarketing activity. That court concluded that "the TCPA only attempts to regulate interstate telemarketing activity,"(10) and "the recipient of an intrastate fax advertisement has no private right of action under the TCPA."(11)
Another federal court considered this question in another unreported case, also later vacated on other grounds, in Nicholson v. Hooters of Augusta, Inc.(12) The Nicholson court, citing the soon-to-be-vacated(13) Chair King decision, also held that "[t]he TCPA regulates only interstate transmissions."(14)
The courts of appeals later vacated both Chair King and Nicholson for lack of subject matter jurisdiction.(15) Both cases are now proceeding in their respective state courts. Even though vacated, the reasoning and conclusions of these district court decisions refuse to die; they reappear in telemarketers' arguments in other TCPA cases,(16) and telemarketers are likely to continue to raise these arguments in the future. …