Erienet, Inc. Sandra MacKenzie John Knauer Frank Mezler, Jr. v. Velocity Net, Inc. Thomas Dylewski Chad Ferenack

156 F.3d 513, 13 Communications Reg. (P&F) 956, 1998 U.S. App. LEXIS 23931, 1998 WL 656175
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 25, 1998
Docket97-3562
StatusPublished
Cited by86 cases

This text of 156 F.3d 513 (Erienet, Inc. Sandra MacKenzie John Knauer Frank Mezler, Jr. v. Velocity Net, Inc. Thomas Dylewski Chad Ferenack) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erienet, Inc. Sandra MacKenzie John Knauer Frank Mezler, Jr. v. Velocity Net, Inc. Thomas Dylewski Chad Ferenack, 156 F.3d 513, 13 Communications Reg. (P&F) 956, 1998 U.S. App. LEXIS 23931, 1998 WL 656175 (3d Cir. 1998).

Opinions

OPINION OF THE COURT

RENDELL, Circuit Judge.

This appeal requires us to consider the unique and apparently unprecedented question of whether federal district courts, have jurisdiction over consumer lawsuits brought under a federal statute that creates a private cause of action, is silent as to whether such actions can be brought in federal courts, but expressly refers consumer claims to state courts. Appellant ErieNet, Inc., ah Internet service provider, and. the individual appellants, ErieNet subscribers, brought suit in federal district court under the private enforcement provision of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Appellants allege that appellees Velo-cityNet, Inc., another Internet service provider, and its agents and employees sent unsolicited e-mail messages to ErieNet subscribers in violation of the TCPA. Because the TCPA refers such consumer suits to state courts, the district court concluded that it lacked subject matter jurisdiction and dismissed the case pursuant to Federal Rule of Civil Procedure 12(h)(3). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we will exercise plenary review. See Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1280 (3d Cir.1993) (citations omitted). We will affirm.

I.

Enacted in 1991 as part of the Federal Communications Act, the TCPA seeks to deal with an increasingly common nuisance — telemarketing. More than 300,000 solicitors call more than 18,000,000 Americans each day. See 47 U.S.C. § 227, Congressional finding No. 3. By 1991, over half the states had enacted statutes restricting the marketing uses of the telephone. However, Congress recognized that “telemarketers can evade [state] prohibitions through interstate opera-; tion; therefore, Federal law is needed to control residential telemarketing practices.” 47 U.S.C. § 227, Congressional finding No. 7; see also S.Rep. No. 102-178, at 5 (1991), reprinted in, 1991 U.S.C.C.A.N. 1968, 1973 (“The Committee believes that Federal legislation is necessary to protect the public from automated telephone calls ... Federal action is necessary because the States do not have the jurisdiction to protect their citizens against those who use these machines to place interstate telephone calls.”).

Accordingly, Congress enacted the TCPA, which prohibits, inter alia, various uses of automatic telephone dialing systems, the initiation of certain telephone calls using artificial or prerecorded voices, and the use of any device to send an unsolicited advertisement to a telephone facsimile machine. See 47 U.S.C. § 227(b).1 Under § 227(f), states may bring civil actions in federal court on behalf of their residents for violations of the TCPA. In addition, the statute expressly creates a 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—
[515]*515(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.

47 U.S.C. § 227(b)(3). Senator Hollings, the sponsor of the bill, stated:

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 legislen tors to determine. Nevertheless, it is my hope that the 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.

137 Cong. Rec. S16205-06 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings) (emphasis added).

Although actual monetary losses from telemarketing abuses are likely to be minimal, this private enforcement provision puts teeth into the statute by providing for statutory damages and by allowing consumers to bring actions on their own. Consumers who are harassed by telemarketing abuses can seek damages themselves, rather than waiting for federal or state agencies to prosecute violations. Although § 227(f)(1) of the statute does authorize states to bring actions on their citizens’ behalf, the sheer number of calls made each day — more than 18,000,000— would make it impossible for government entities alone to completely or effectively supervise this activity.

II.

We recognize at the outset that the circumstances of this case are unique. We are confronted with “an unusual constellation of statutory features.” Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 512 (5th Cir.1997). A federal statute creates a private cause of action. The statute is not silent as to where such actions may be brought; rather, it refers potential plaintiffs to the state courts. Neither the text nor the legislative history makes any reference to federal courts. Furthermore, the statute does not appear to reflect any significant federal interest, or one that is uniquely federal. It dpes not reflect an attempt by Congress to occupy this field of interstate communication or to promote national uniformity of regulation. Rather, Congress recognized that state regulation of telemarketing activity was ineffective because it could be avoided by interstate, operations. Federal legislation was necessary in order to prevent telemarketers from evading state restrictions. See Van Bergen v. Minnesota, 59 F.3d 1541, 1548 (8th Cir.1995).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

DIRAUF v. BERGER
D. New Jersey, 2020
Forrest v. Genpact Services, LLC
962 F. Supp. 2d 734 (M.D. Pennsylvania, 2013)
Fitzgerald v. Gann Law Books, Inc.
956 F. Supp. 2d 581 (D. New Jersey, 2013)
Sussman v. I.C. System, Inc.
928 F. Supp. 2d 784 (S.D. New York, 2013)
Hoover v. Monarch Recovery Management, Inc.
888 F. Supp. 2d 589 (E.D. Pennsylvania, 2012)
Bailey v. Domino's Pizza, LLC
867 F. Supp. 2d 835 (E.D. Louisiana, 2012)
Mims v. Arrow Financial Services, LLC
132 S. Ct. 740 (Supreme Court, 2012)
Charvat v. NMP, LLC
656 F.3d 440 (Sixth Circuit, 2011)
Herbert Sperling v. David Ebbert
438 F. App'x 68 (Third Circuit, 2011)
Landsman & Funk PC v. Skinder-Strauss Associates
640 F.3d 72 (Third Circuit, 2011)
Charvat v. EchoStar Satellite, LLC
630 F.3d 459 (Sixth Circuit, 2010)
Arthur R. Tubbs v. N Amer Title Agency Inc.
389 F. App'x 104 (Third Circuit, 2010)
Charvat v. NMP, LLC
703 F. Supp. 2d 735 (S.D. Ohio, 2010)
Holster, III v. BNA Subsidiaries
2010 DNH 044 (D. New Hampshire, 2010)
Raitport v. Harbour Capital
2010 DNH 039 (D. New Hampshire, 2010)
Italia Foods, Inc. v. Sun Tours, Inc.
927 N.E.2d 682 (Appellate Court of Illinois, 2010)
Landsman & Funk, P.C. v. Skinder-Strauss Associates
636 F. Supp. 2d 359 (D. New Jersey, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
156 F.3d 513, 13 Communications Reg. (P&F) 956, 1998 U.S. App. LEXIS 23931, 1998 WL 656175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erienet-inc-sandra-mackenzie-john-knauer-frank-mezler-jr-v-velocity-ca3-1998.