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Adler v. Vision Lab Telecommunications

October 17, 2005


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


William Adler and five other plaintiffs allege that they received unsolicited and improperly identified faxes from Vision Lab Telecommunications, Inc. and eight other defendants in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 (Counts I and II), and the District of Columbia Consumer Protection and Procedures Act ("DCCPPA"), D.C. Code § 28-3904 (Count III). Plaintiffs also claim that defendants are liable for the common law torts of negligence (Count IV) and invasion of privacy (Count V). Defendants have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), arguing that plaintiffs have failed to state a claim for each of the five counts.

I. Standard of Review

The standard of review under Rule 12(c) is essentially the same as that for a motion to dismiss under Rule 12(b)(6). Jung v. Assoc. of Am. Med. Colleges, 339 F. Supp. 2d 26, 35-36 (D.D.C. 2004). Thus, dismissal is appropriate only where a defendant has shown "'beyond doubt that the plaintiff can prove no set of facts in support of [their] claim which would entitle [them] to relief.'" In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C. Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1955)). The allegations in plaintiffs' complaint are presumed true and all reasonable factual inferences should be construed in their favor. Maljack Prods., Inc. v. Motion Picture Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979).

II. TCPA Claims

The TCPA prohibits the transmission of unsolicited fax advertisements and of faxes that do not contain certain identifying information.*fn1 47 U.S.C. §§ 227(b)(1)(C), (d)(2). Count I alleges that defendants violated the TCPA by sending faxes to plaintiffs "without prior express invitation or permission" (Am. Compl. ¶ 55), while Count II alleges that defendants violated the TCPA by failing to provide proper identification. (Id. ¶ 58.) Defendants argue that these counts must fail because no private right of action exists for either of these violations.

A. Count I: Unsolicited Faxes

Under the TCPA, a recipient of an unsolicited fax may assert a private right of action in state court*fn2 if "otherwise permitted by the laws of a State." 47 U.S.C. § 227(b)(3).*fn3 Courts interpreting this ambiguous phrase have differed, with most concluding that the term simply "acknowledges the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules to accommodate TCPA claims" or that a private right of action exists as long as a state has not "opted out" of the federal scheme, although others have found that no right exists unless a state has affirmatively "opted in." Schulman v. Chase Manhattan Bank, 268 A.D. 2d 174, 179 (N.Y. App. Div. 2000).

For example, in Portuguese-American Leadership Council of the U.S., Inc. v. Investors' Alert, Inc., Case No. 01-CA-3479 (D.C. Super. Ct., July 22, 2003), a D.C. Superior Court judge held that D.C. must "opt in" to allow its citizens a private right of action under the TCPA. Defendants argue that D.C. is therefore an opt-in state and, since it has not "pass[ed] legislation or promulgate[d] court rules consenting to state court actions based on the TCPA," plaintiffs' claim must fail. (See Defs.' Rule 12(c) Mot. for J. on the Pleadings ["Mot."] at 4 (quoting Autoflex Leasing, Inc. v. Mfrs. Auto Leasing, Inc., 16 S.W.3d 815, 817 (Tex. App. 2000)).) However, more recent cases have disagreed with Portuguese-American and have rejected the opt-in approach. See Adler v. Advanced Wireless Cellular Comm., Inc., No. 01-SC-12944 (D.C. Super. Ct. July 6, 2005) (rejecting the opt-in approach and finding that the D.C. Superior Court has jurisdiction over claims brought under the TCPA); Morris v., Inc., No. 03-CA-1109 (D.C. Super. Ct. Dec. 19, 2003) (same); City Lights Sch., Inc. v. T-Mobile USA, Inc., No. 03-CA-2780 (D.C. Super. Ct. Nov. 18, 2003) (same). The Portuguese-American decision also runs counter to state court decisions in California, Florida, Pennsylvania, New Jersey, New York, Missouri, Maryland, Georgia, and Texas, all of which have rejected the opt-in approach. See Kaufmann v. ACS Sys. Inc., 110 Cal. App. 4th 886 (Cal. App. 2d. Dist. 2003); Condon v. Office Depot, Inc., 855 So. 2d 644 (Fla. Dist. Ct. App. 2003); Aronson v., Inc., 51 Pa. D.&C. 4th 421 (Pa. Ct. Com. Pl. 2001); Zelma v. Market USA, 778 A.2d 591 (N.J. Super. Ct. App. Div. 2001); Schulman, 268 A.D. 2d 174; Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907 (Mo. 2002); R.A. Ponte Architects v. Investors' Alert, Inc., 857 A.2d 1 (Md. 2004); Hooters of Augusta, Inc. v. Nicholson, 537 S.E.2d 468 (Ga. Ct. App. 2000); Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365 (Tex. App. 2004). Nor has any federal appellate court ever adopted the opt-in approach. See Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt-In? Can States Opt-Out?, 33 Conn. L. Rev. 407, 415 (2001).

Given the persuasive reasoning of the many cases cited above that have rejected the notion that states must take affirmative action to provide their citizens with a forum for TCPA claims, the Court concludes that plaintiffs may bring an action against defendants for a violation of § 227(b).*fn4 Defendants' motion to dismiss Count I will therefore be denied.

B. Count II: Improperly Identified Faxes

Count II asserts a cause of action based on regulations promulgated by the Federal Communications Commission ("FCC") pursuant to the TCPA, which require that faxes properly identify the individual or entity sending the faxed message and the number of the sender. 47 C.F.R. § 68.318(d). Defendants contend the TCPA does not provide a private right of action for such a claim. Based on the plain language of the statute, the Court agrees. The private right of action established by § 227(b)(3) limits the right to "an action based on a violation of this subsection [i.e., subsection (b)] or the regulations prescribed under this subsection." 47 U.S.C. § 227(b)(3) (emphasis added). The regulations cited by plaintiffs, however, were issued pursuant to a directive in § 227(d).*fn5 See Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 Fed. Reg. 44144, 44170 (July 25, 2003) (citing § 227(d) as authority for 47 U.S.C. § 68.318(d)).*fn6 Section 227(b) deals with unsolicited faxes, not improperly identified faxes. A private right of action exists only with respect to the former. See 47 U.S.C. § 227(d) (omitting any mention of a private right of action). Thus, Count II must be dismissed for lack of subject matter jurisdiction.*fn7

III. Count III: D.C. Consumer Protection Procedures Act

Defendants argue that the Court should dismiss Count III because plaintiffs are not consumers of defendants' services (Mot. at 9) or, in the alternative, because plaintiffs have failed to allege ...

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