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| Bar Bulletin |
August,
2003 |
| MSBA News |
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Maryland Consumers
Can't Sue Against Junk Fax - Yet
By Eric H. Singer
The federal Telephone
Consumer Protection Act (“TCPA”) aims to protect consumers’ privacy by
among other things prohibiting unsolicited, prerecorded telephone sales
pitches and the sending of “junk faxes.” To facilitate enforcement, the
TCPA allows Maryland consumers (just like consumers from all states) to
sue for TCPA violations in Maryland state court – “if otherwise permitted”
by Maryland law. Although Maryland consumers’ right to sue is assured when
they receive prohibited pre-recorded telephone solicitations, their right
to sue over junk faxes is now in doubt as a result of the Court of Special
Appeals’ decision this past January in R.A. Ponte
Architects v. Investor’s Alert, Inc.
In Ponte, an
architectural firm received unsolicited faxes from an investment
newsletter pushing the purchase of stock in various corporations. The firm
sued the solicitor in Montgomery County Circuit Court for violating the
TCPA’s ban on using a fax machine to send unsolicited advertising to
another fax machine. The Circuit Court dismissed for lack of subject
matter jurisdiction, and the Court of Special Appeals affirmed, ruling
that Maryland law does not “otherwise permit” a consumer to sue
against junk fax in state court under the TCPA. The Court noted that Title
14-1313 of Maryland’s Commercial Law Article also prohibits a person from
intentionally making an electronic or telephonic transmission to another’s
fax machine to make a commercial solicitation. However, under CL §14-1313,
only Maryland’s attorney general, not an individual consumer, can bring an
action for a violation. “By opting not to create a private right of action
for violation of Maryland law, the [Maryland] legislature has indicated
its intent not to permit a private right of action for violation of the
comparable federal law,” the Court of Special Appeals stated.
For purpose of its
decision, the Court read the TCPA’s “if otherwise permitted” language as
the great majority of courts have. That phrase did not mean that for a
consumer to be able to bring suit under the TCPA in Maryland state court,
the Maryland legislature had to pass explicit legislation “permitting” or
consenting to the TCPA’s grant of jurisdiction. Rather, a consumer’s
private right of action was presumed unless Maryland had “opted-out,” or
affirmatively declined, the TCPA’s grant of jurisdiction. For three
reasons, the Court decided that “opting out” was what Maryland’s General
Assembly intended.
First, for a panoply of
Maryland’s own consumer protection laws, the legislature created a private
right to sue; notably, however, it failed to do so for the ban on
unsolicited facsimile transmissions in CL §14-1313. Second, four times
since CL §14-1313 was enacted in 1989 have bills come before the
legislature that might have reasonably prompted it, in the Court’s view,
to amend the omission (it did not do so). Third, given that the
legislature prohibited Maryland consumers from suing for violations of
Maryland’s own unsolicited facsimile transmission law, it would make no
sense to allow them a private right of action in state court for
violations of the comparable junk fax prohibition in the TCPA.
This past May, the
Court of Appeals granted certiorari in Ponte – and with good
reason, because the conclusion that the General Assembly has actually
demonstrated its intent to opt out of the TCPA’s grant of jurisdiction
will strike many as a stretch. The General Assembly passed CL §14-1313 in
1989 – two years before the TCPA was passed, so obviously it did not draft
CL §14-1313 with the TCPA’s private right of action in mind. Moreover,
since 1989, not one of the four bills noted by the Court of Special
Appeals squarely proposed enacting a private cause of action against
unsolicited facsimile transmissions, so one cannot say with confidence
that the General Assembly has ever “reaffirmed” its 1989 choice through
inaction. Indeed, as the Court of Special Appeals itself acknowledged, the
General Assembly has never voiced its rejection of private actions under
the TCPA for the last 13 years. During that time, it is presumed to have
been aware of the TCPA and aware of the almost unanimous view among other
jurisdictions that private actions may be brought in state court unless
affirmatively barred by state law.
As for the anomaly that
the Court of Special Appeals thought would be created if Maryland
consumers could sue for junk fax violations of the TCPA but not sue for
violations of CL 14-1313: the fact is that the TCPA, a federal law, covers
interstate junk faxes that reach Maryland consumers; Maryland’s law
does not have this reach. The TCPA would allow Maryland consumers to sue
to enjoin such violations or to recover damages, or both. It is not clear
that the legislature would find this result unacceptably anomalous.
Will Maryland consumers
be able to sue in state court to block the transmission of prohibited junk
faxes? The Court of Appeals will have the last word this term.
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