WATT, J.:
T 1 The above styled and numbered causes are consolidated for disposition by a single opinion.
We granted certiorari to consider an issue of first impression: whether Oklahoma courts have jurisdiction over a private party's suit alleging violation of the Telecommunications Consumer Protection Act (TCPA), 47 U.S.C. § 227 (2005).
{2 We join the almost unanimous pronouncements of extant federal and state courts having decided the issue
and determine that private parties may pursue violation of the TCPA in Oklahoma courts. Our holding is supported by provisions of the Oklahoma Constitution: 1) art. 2, § 6 guaranteeing Oklahoma citizens open access to
the judicial system;
and 2) art. 7, § T(a) allocating unlimited original jurisdiction of all justiciable matters not otherwise restricted to the district courts.
RELEVANT FACTS
T3 Suit was filed on behalf of the consumers and all others similarly situated
in both
causes in an attempt by the private parties to recover damages under the TCPA based on the receipt of allegedly unsolicited telephone facsimile advertisements (faxes). The solicitors argued that because the Oklahoma Legislature had not specifically provided for such a cause of action, no private suit could be maintained. They also asserted that any faxed documents received by the private parties were not "unsolicited" within the meaning of the TCPA.
In both suits, the advertisers moved for summary judgment arguing that the district court lacked jurisdiction to proceed in the causes. The motions were granted; and appeals were filed in 2008.
{4 On December 81st of the same year, the Court of Civil Appeals issued two opinions, identical in their reasoning. The appellate court reversed the trial court and remanded the causes. It determined that a private cause of action could be maintained in Oklahoma courts and that remand was necessary for the determination of material facts concerning circumstances surrounding the transmission of the faxed materials. Petitions for certiorari were filed on January 20, 2009. On March 31, 2009, the Court granted certiorari in both causes.
History and Purpose of the Telephone Consumer Protection Act (TCPA)
15 In 1991, the United States Congress conducted hearings on several bills related to the regulation of telemarketing
in response to consumer complaints regarding the growing number of unsolicited telemarketing calls and fax advertisements.
Relevant to our consideration here is the language of the TCPA prohibiting the use of telephone facsimile machines, computers, or other devices to send unsolicited advertisements to a fax machine. Specifically at issue is the portion of the TCPA creating a private right of action
for anyone receiving an unsolicited facsimile advertisement and allowing the recovery of $500 for each violation.
The purpose of the provision is to protect fax machine owners from unsolicited advertisements."
De Novo Standard of Review.
T6 The trial court granted summary judgment based on a legal determination that the private parties could not proceed on a cause of action for violation of the TCPA. Jurisdictional issues present questions of law.
Therefore, our review is de novo.
T7 a. Private Parties may Pursue Violations of the Telecommunications Consumer Protection Act (TCPA), 47 TU.S.C. § 227 (2005), in Oklahoma Courts.
T8 The language relating to the consumers' private right of action is found in § 227(b)(8) of title 47 of the United States Code providing in pertinent part:
"A person or entity may, if otherwise permitted by the lows or rules of 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, or
(C) both such actions...." [Emphasis provided.]
The issue here is whether the phrase, "if otherwise permitted by the laws or rules of court of a State," allows consumers to bring a private right of action in Oklahoma courts for violation of the federal statutory provision.
19 The solicitors contend that the language in question requires the Oklahoma Legislature to affirmatively enable courts of this state to hear private claims arising under the TCPA. Because the Legislature has not passed a statutory provision specifically allowing private parties to file suit against violators of the TCPA, they argue that such actions may not be heard in our courts. The private parties assert that there is no need for legislative action before they may proceed to recover the statutorily provided recovery. We agree that legislative intervention is not a condition precedent to consumers recovering for violations of the TCPA in Oklahoma courts.
10 1) The Majority Position: Private Parties may proceed in State Courts without Legislative Intervention.
111 The overwhelming majority of courts considering the issue of whether private parties may sue for TCPA violations in state court have determined that citizens should be allowed to proceed.
In settling
the issue, extant federal and state courts have tended to apply one of three theories.
Each of the theories focuses on an attempt to interpret the facially permissive language
of the federal statute.
{12 The "acknowledgment" approach is grounded in the Supremacy Clause of the United States Constitution.
Courts adhering to this theory construe the phrase "if otherwise permitted" as a recognition by Congress 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.
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WATT, J.:
T 1 The above styled and numbered causes are consolidated for disposition by a single opinion.
We granted certiorari to consider an issue of first impression: whether Oklahoma courts have jurisdiction over a private party's suit alleging violation of the Telecommunications Consumer Protection Act (TCPA), 47 U.S.C. § 227 (2005).
{2 We join the almost unanimous pronouncements of extant federal and state courts having decided the issue
and determine that private parties may pursue violation of the TCPA in Oklahoma courts. Our holding is supported by provisions of the Oklahoma Constitution: 1) art. 2, § 6 guaranteeing Oklahoma citizens open access to
the judicial system;
and 2) art. 7, § T(a) allocating unlimited original jurisdiction of all justiciable matters not otherwise restricted to the district courts.
RELEVANT FACTS
T3 Suit was filed on behalf of the consumers and all others similarly situated
in both
causes in an attempt by the private parties to recover damages under the TCPA based on the receipt of allegedly unsolicited telephone facsimile advertisements (faxes). The solicitors argued that because the Oklahoma Legislature had not specifically provided for such a cause of action, no private suit could be maintained. They also asserted that any faxed documents received by the private parties were not "unsolicited" within the meaning of the TCPA.
In both suits, the advertisers moved for summary judgment arguing that the district court lacked jurisdiction to proceed in the causes. The motions were granted; and appeals were filed in 2008.
{4 On December 81st of the same year, the Court of Civil Appeals issued two opinions, identical in their reasoning. The appellate court reversed the trial court and remanded the causes. It determined that a private cause of action could be maintained in Oklahoma courts and that remand was necessary for the determination of material facts concerning circumstances surrounding the transmission of the faxed materials. Petitions for certiorari were filed on January 20, 2009. On March 31, 2009, the Court granted certiorari in both causes.
History and Purpose of the Telephone Consumer Protection Act (TCPA)
15 In 1991, the United States Congress conducted hearings on several bills related to the regulation of telemarketing
in response to consumer complaints regarding the growing number of unsolicited telemarketing calls and fax advertisements.
Relevant to our consideration here is the language of the TCPA prohibiting the use of telephone facsimile machines, computers, or other devices to send unsolicited advertisements to a fax machine. Specifically at issue is the portion of the TCPA creating a private right of action
for anyone receiving an unsolicited facsimile advertisement and allowing the recovery of $500 for each violation.
The purpose of the provision is to protect fax machine owners from unsolicited advertisements."
De Novo Standard of Review.
T6 The trial court granted summary judgment based on a legal determination that the private parties could not proceed on a cause of action for violation of the TCPA. Jurisdictional issues present questions of law.
Therefore, our review is de novo.
T7 a. Private Parties may Pursue Violations of the Telecommunications Consumer Protection Act (TCPA), 47 TU.S.C. § 227 (2005), in Oklahoma Courts.
T8 The language relating to the consumers' private right of action is found in § 227(b)(8) of title 47 of the United States Code providing in pertinent part:
"A person or entity may, if otherwise permitted by the lows or rules of 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, or
(C) both such actions...." [Emphasis provided.]
The issue here is whether the phrase, "if otherwise permitted by the laws or rules of court of a State," allows consumers to bring a private right of action in Oklahoma courts for violation of the federal statutory provision.
19 The solicitors contend that the language in question requires the Oklahoma Legislature to affirmatively enable courts of this state to hear private claims arising under the TCPA. Because the Legislature has not passed a statutory provision specifically allowing private parties to file suit against violators of the TCPA, they argue that such actions may not be heard in our courts. The private parties assert that there is no need for legislative action before they may proceed to recover the statutorily provided recovery. We agree that legislative intervention is not a condition precedent to consumers recovering for violations of the TCPA in Oklahoma courts.
10 1) The Majority Position: Private Parties may proceed in State Courts without Legislative Intervention.
111 The overwhelming majority of courts considering the issue of whether private parties may sue for TCPA violations in state court have determined that citizens should be allowed to proceed.
In settling
the issue, extant federal and state courts have tended to apply one of three theories.
Each of the theories focuses on an attempt to interpret the facially permissive language
of the federal statute.
{12 The "acknowledgment" approach is grounded in the Supremacy Clause of the United States Constitution.
Courts adhering to this theory construe the phrase "if otherwise permitted" as a recognition by Congress 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.
Under this view, no state can refuse to entertain a private TCPA action, but a state is not compelled to adopt special procedural rules for such actions.
Acknowledgment" states require no enabling legislation for parties to assert private TCPA claims.
1 13 The "opt out" interpretation construes the TCPA to immediately authorize private rights of action in state court without the necessity of affirmative state action. In order that a state's courts not entertain such claims, there must be affirmative action through legislation or court rule specifically refusing to entertain a private TCPA claim.
Absent such steps to opt out of private en-foreement actions, concerns arise as to whether failure to allow private parties to pursue TCPA recoveries refuses to recognize the supremacy of the Federal Constitution.
14 The third standard, and the one the solicitors urge us to adopt, looks at the language of the TCPA and concludes that Congress intended to deprive state courts of jurisdiction over private TCPA actions. Under this approach, the language "otherwise permitted" is said to indicate that the TCPA does not create an immediately enforceable right.
Under this theory, such actions may be maintained in state court only after affirmative steps are taken to "opt in,"
either by legislation or court rule, to exercise jurisdiction over such actions. This approach has been criticized as misconstruing the federal pronouncements on the TCPA.
It also raises Tenth Amendment concerns if construed as a federal mandate for states to enact legislation.
15 In contrast to the reasoning of the overwhelming majority of jurisdictions, only one state has unequivocally espoused the "opt in" theory. In The Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707, 718 (Tex.2006), the Texas Supreme Court held that the TCPA did not create an immediately enforceable private right of action for unsolicited faxes and that such a cause of action would not be recognized in Texas courts until the Legislature amended the state's business and commerce code to provide for such a suit by private parties. Such a provision was added by Texas' 80th Legislature in 2007 with an effective date of April 1st of this year.
Therefore, there are now no states who have considered the issue of enforcement under the TCPA which do not allow such actions in their respective courts.
16 2) Oklahoma's jurisprudence allowing the enforcement of federal rights in state courts along with constitutional provisions requiring open access to the court system and defining the system's jurisdictional sweep aligns us with those jurisdictions adopting the "acknowledgment" approach to TCPA claims.
117 Our jurisprudence recognizes that the Supremacy Clause of the United States Constitution
does not create jurisdiction in state appellate courts where none exists otherwise.
Nevertheless, Oklahoma courts have inherent authority to adjudicate claims arising under the laws of the United States.
Furthermore, federal claims analogous to those outlined in state law are enforceable in Oklahoma courts.
In the case of TCPA violations, the Oklahoma Legislature has specifically provided for the enforcement of an "analogous state law claim" by the passage of a statutory provision making it a crime to transmit electronic or telephonic transmissions to facsimile machines for the purpose of commercial solicitation.
118 The judiciary is the independent department of government charged with the responsibility of protecting constitutional rights.
The access to courts provision of the Oklahoma Constitution guarantees that our courts will be open to all without prejudice "for speedy and certain remedy afforded for every wrong and for very injury to person, property, or reputation."
In 1967, the voters of Oklahoma adopted a Legislative Referendum relating to the jurisdiction of state courts.
The adoption of this referendum gave the district courts "unlimited original jurisdiction of all justiciable matters."
The Court analyzed the impact of this provision in 1982 in Lee v. Hester, 1982 OK 30, 642 P.2d 248. In so doing, the Lee Court acknowledged that the sweep of the district court's power could no longer be said to hinge on the presence of some specifically tailored legislative grant.
119 The "acknowledgment" approach to TCPA claims requires no legislative intervention before private parties may proceed in state courts to protect themselves from unsolicited facsimile transmission. The Oklahoma Legislature has previously recognized that an analogous state-law claim may be criminally prosecuted. Oklahoma's Constitution recognizes federal supremacy while guaranteeing Oklahoma citizens the right to open access to the judicial system with a jurisdictional sweep that does not depend on legislative grant. We join the almost unanimous pronouncements of extant federal and state courts having decided the issue
and determine that private parties may pursue violation of the TCPA in Oklahoma courts.
CONCLUSION
1 20 We express no opinion as to whether the private parties will succeed in their attempt to collect damages from the solicitors for violation of the TCPA. There remain questions of material fact to be resolved on the issue of whether the faxes sent by the solicitors were either with the permission or at the request of the private parties. Therefore, we hold only that private parties may pursue violation of the TCPA in Oklahoma courts.
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CAUSE REMANDED.
EDMONDSON, C.J., OPALA, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ. concur.
TAYLOR, V.C.J., HARGRAVE, J. dissent.