IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|STATE OF NORTH DAKOTA EX REL.|
|dba THE FREEEATS COMPANIES,|
|Supreme Court No. 20050171|
|Burleigh Co. No. 08-04-C-01694|
APPEAL FROM THE OPINION AND ORDER DATED FEBRUARY 2, 2005; ORDER FOR FINAL JUDGMENT DATED MARCH 14, 2005; FINAL JUDGMENT FOR THE STATE OF NORTH DAKOTA DATED MARCH 15, 2005; AND NOTICE OF ENTRY OF FINAL JUDGMENT DATED MARCH 17, 2005
HONORABLE GAIL HAGERTY PRESIDING
BURLEIGH COUNTY DISTRICT COURT, CIVIL NO. 08-04-C-01694
BRIEF OF APPELLEE
|STATE OF NORTH DAKOTA|
|By:||James Patrick Thomas|
|Assistant Attorney General|
|State Bar ID No. 06014|
|Office of Attorney General|
|4205 State Street|
|PO Box 1054|
|Bismarck, ND 58502-1054|
|Telephone (701) 328-5570|
|Attorneys for Appellee.|
TABLE OF CONTENTS
|STATEMENT OF THE FACTS||2|
|I.||TELEPHONE CONSUMER PROTECTION ACT OF 1991||2|
|II.||NORTH DAKOTA'S DO NOT CALL LAW||4|
|STANDARD OF REVIEW||5|
|LAW AND ARGUMENT||6|
|I.||THE CONSTITUTION GUARANTEES STATE SOVEREIGN|
|A.||The Constitution Defines the Scope of State Sovereignty||6|
|B.||The FCC Cannot Unilaterally Expand Its Powers of Preemption||6|
|C.||States Have a Compelling Interest In Consumer Protection and|
|1.||States' police power extends to consumer protection and|
|2.||The States have long regulated telemarketing practices|
|implicating state interests||9|
|II.||NORTH DAKOTA'S STATUTE IS NOT PREEMPTED||11|
|A.||There Are Strong Presumptions Against Preemption||11|
|B.||Neither the TCPA Nor the FCA Mandate Preemption||12|
|1.||Congressional intent is the touchstone of preemption||12|
|2.||Field preemption requires unequivocal action by|
|3.||The plain language of the statutes control||14|
|a.||The TCPA does not expressly preempt State law||15|
|b.||The TCPA text explicitly rejects preemption||16|
|c.||The TCPA text is unambiguous||20|
|d.||The FCA text refutes preemption||22|
|III.||COURTS REJECT FCA AND TCPA PREEMPTION OF STATE TELEMARKETING LAW||24|
|A.||Van Bergen held the TCPA does not preempt State law|
|B.||At Least Four Other U.S. Courts of Appeals Have Rejected the|
|Broad Preemptive Effect of the TCPA Argued by FreeEats||28|
|C.||The U.S. Supreme Court Rejects the Broad Preemptive Effect of|
|the FCA Argued by FreeEats||30|
|IV.||CONFLICT PREEMPTION IS INAPPLICABLE||33|
TABLES OF AUTHORITIES
|Billey v. North Dakota Stockmen's Ass'n|
|1998 ND 120, 579 N.W.2d 171||20|
|Black v. Financial Freedom Senior Funding Corp.|
|112 Cal.Rptr.2d (Cal. Ct. App. 2001)||12|
|City of Dickinson v. Thress|
|290 N.W. 653 (N.D. 1940)||22|
|Commonwealth v. Sow|
|860 A.2d 154 (Pa. Super. 2004)||35|
|Comstock Const., Inc. v. Sheyenne Disposal, Inc.|
|2002 ND 141, 651 N.W.2d 656||33|
|Consolidated Tel. Coop. v. Western Wireless Corp.|
|2001 ND 209, 637 N.W.2d 699||6|
|Davis v. Dinnie|
|13 N.D. 430, 101 N.W. 314 (N.D. 1904)||27|
|Doyle v. Spryncyznatyk|
|2001 ND 8, 621 N.W.2d 353||15|
|Estate of Thompson|
|1998 ND 226, 586 N.W.2d 847||15|
|Federal Land Bank v. Lillehaugen|
|404 N.W.2d 452, (N.D. 1987)||11, 12, 13|
|Home of Economy v. Burlington Northern Santa Fe R.R.|
|2005 ND 74, 694 N.W.2d 840||9|
|Keyes v. Amundson|
|343 N.W.2d 78 (N.D. 1983)||34, 35|
|Kohler v. Stevens|
|74 N.D. 655, 24 N.W.2d 64 (1946)||18|
|Medcenter One, Inc. v. North Dakota State Bd. of Pharmacy|
|1997 ND 54, 561 N.W.2d 634||14|
|Narum v. Faxx Foods, Inc.|
|1999 ND 45, 590 N.W.2d 454||18|
|North Dakota v. Liberty Nat'l Bank & Trust|
|427 N.W.2d 307 (N.D. 1988)||12, 14, 33, 34, 35|
|Northwestern Federal S&L v. Ternes|
|315 N.W.2d 296 (N.D. 1982)||34|
|Otter Tail Power Co. v. Public Serv. Comm'n|
|354 N.W.2d 701 (N.D. 1984)||11|
|People v. Wintermute|
|46 N.W. 694 (Dak. Terr. 1875)||14|
|Riverside Park Condo. Ass'n v. Lucas|
|2005 ND 26, 691 N.W.2d 862||5|
|Smiley v. Citibank|
|11 Cal.4th 138, 900 P.2d 690 (Cal. 1995), affd. 517 U.S. 735 (1996)||7, 8, 12, 27|
|State ex rel. Agnew v. Schneider|
|235 N.W.2d 184 (N.D. 1977)||6|
|State v. Rambousek|
|479 N.W.2d 832 (1992)||14|
|Zueger v. Workers Comp. Bureau|
|1998 ND 175, 584 N.W.2d 530||19|
|Arrow Transportation Co. v. Southern R. Co.|
|372 U.S. 658 (1963)||31|
|A.S.I. Worldwide Communications Corp. v. WorldCom, Inc.|
|115 F.Supp.2d 201 (D. N.H. 2000)||32|
|Ashley v. Southwestern Bell Tel. Co.|
|410 F.Supp. 1389 (W.D. Tex. 1976)||23|
|Atheron v. FDIC|
|519 U.S. 213 (1997)||36|
|Bravman v. Baxter Healthcare Corp.|
|842 F.Supp. 747 (S.D. N.Y. 1994)||34|
|California v. ARC America Corp.|
|490 U.S. 93 (1989)||12|
|California Fed. S&L Ass'n v. Guerra|
|479 U.S. 272 (1987)||14, 16|
|Camps Newfound/Owatonna, Inc. v. Town of Harrison|
|520 U.S. 564 (1997)||13, 36|
|Castellanos v. U.S. Long Distance Corp.|
|928 F.3d 753 (N.D. III. 1996)||23|
|Chair King, Inc. v. Houston Cellular Corp.|
|131 F.3d 507 (5th Cir. 1997)||29|
|Cedar Rapids Cellular Tel. v. Miller|
|280 F.3d 874 (8th Cir. 2002)||9|
|Chickasaw Nation v. U.S.|
|534 U.S. 84 (2001)||16|
|Cipollone v. Liggett Group, Inc.|
|505 U.S. 504 (1992)||17|
|City of Ellensburg v. King Videocable Co.|
|1993 WL 816526 (E.D. Wash. 1993)||24|
|Comtronics, Inc. v. Puerto Rico Tel. Co.|
|553 F.2d 701(1st Cir. 1977)||23|
|Conroy v. Aniskoff|
|507 U.S. 511 (1993)||22|
|Cooperative Communications, Inc. v. AT&T|
|867 F.Supp. 1511 (D. Utah 1994)||23|
|De Canas v. Bica|
|424 U.S. 351 (1976)||12|
|DeCastro v. AWACS, Inc.|
|935 F.Supp. 541 (D. N.J. 1996)||23|
|Edenfield v. Fane|
|507 U.S. 761 (1993)||9|
|English v. General Elec. Co.|
|496 U.S. 72 (1990)||34|
|ErieNet, Inc. v. Velocity Net, Inc.|
|156 F.3d 513 (3rd Cir. 1998)||29|
|FCC v. Pacifica Found.|
|438 U.S. 726 (1978)||9|
|Federal Communications Comm'n v. Sanders Bros. Radio Station|
|309 U.S. 470 (1940)||32|
|Fidelity Fed. S&L Ass'n. v. de la Cuesta|
|458 U.S. 141 (1982)||13|
|Florida v. Sports Auth. Florida, Inc.|
|U.S. Dist. Ct., Middle Dist. Fla., Case No. 6:04-CV-115-Orl-JGG (Order)|
|(June 4, 2004)||30|
|Florida Lime & Avocado Growers v. Paul|
|373 U.S. 132 (1963)||13, 14, 20|
|Frisby v. Schultz|
|487 U.S. 474 (1988)||8|
|Gade v. National Waste Mgmt. Sys.|
|505 U.S. 88 (1972)||13|
|Garrelts v. SmithKline Beecham Corp.|
|943 F.Supp. 1023 (N.D. Iowa 1996)||27|
|Geier v. American Honda Motor Co.|
|529 U.S. 861 (2000)||26|
|Ginochio v. Surgikos, Inc.|
|864 F.Supp. 948 (N.D. Cal. 1994)||34|
|Gregory v. Ashcroft|
|501 U.S. 452 (1991)||11|
|Gulf Oil Corp. v. Copp Paving Co.|
|419 U.S. 186 (1974)||16|
|Head v. New Mexico Bd. of Exam'rs|
|374 U.S. 424 (1963)||30, 31, 32|
|Hillsborough County v. Automated Med. Labs.|
|471 U.S. 707 (1985)||12|
|In Re Universal Serv. Fund Tel. Billing Practice Litig.|
|247 F.Supp.2d 1215 (D. Kan. 2002)||32|
|INS v. Cardoza-Fonseca|
|480 U.S. 421 (1987)||16|
|International Science & Tech. Inst., Inc. v. Inacom Communication, Inc.|
|106 F.3d 1146 (4th Cir. 1997)||28, 30|
|Kovacs v. Cooper|
|336 U.S. 77 (1949)||37|
|Lewis & Nextel Communications, Inc.|
|281 F.Supp. 2d 1302 (N.D. Ala. 2003)||24|
|Louisiana Pub. Serv. Comm'n v. FCC|
|476 U.S. 355 (1986)||7, 9, 27, 36|
|Malone v. White Motor Corp.|
|435 U.S. 497 (1978)||16|
|Marcus v. AT&T Corp.|
|138 F.3d 46 (2d Cir. 1998)||32|
|Maryland v. Louisiana|
|451 U.S. 725 (1981)||11|
|Medtronic, Inc. v. Lohr|
|518 U.S. 470 (1996)||8, 27|
|Metropolitan Life Ins. v. Massachusetts|
|471 U.S. 724 (1985)||8|
|Minnesota v. WorldCom, Inc.|
|125 F.Supp.2d 365 (D. Minn. 2000)||32|
|Moriconi v. AT&T Wireless PCS, LLC|
|280 F.Supp.2d 867 (E.D. Ark. 2003)||23|
|Moser v. FCC|
|46 F.3d 970 (9th Cir. 1995)||37|
|National Bank of Commerce v. Dow Chem. Co.|
|165 F.3d 602, (8th Cir. 1999).||5|
|New York Dept. of Social Services v. Dublino|
|413 U.S. 405 (1973)||12|
|Nicholson v. Hooters of Augusta, Inc.|
|136 F.3d 1287 (11th Cir. 1998)||28|
|North Carolina v. Debt Management Found. Serv., Inc.|
|U.S. Dist. Ct., E. Dist. N.C., Case No. 5:03-CV-950-FL(3) (Order)|
|(March 8, 2004)||30|
|Pinney v. Nokia, Inc.|
|402 F.3d 430 (4th Cir. 2005)||23|
|Rice v. Santa Fe Elevator Corp.|
|331 U.S. 218 (1947)||27|
|Rousseff v. Dean Witter & Co., Inc.|
|453 F.Supp. 774 (N.D. Ind. 1978)||35|
|Rowan v. U.S. Post Office|
|397 U.S. 728 (1978)||9|
|Smiley v. Citibank|
|517 U.S. 735 (1996)||7, 8, 12, 27|
|Smith v. GTE Corp.|
|236 F.3d 1292 (11th Cir. 2001)||24|
|Tafflin v. Levatt|
|493 U.S. 455 (1990)||6|
|United States v. Kimbell Foods, Inc.|
|440 U.S. 715 (1979)||36|
|United States v. Locke|
|529 U.S. 89 (2000)||26|
|United States v. Russello|
|464 U.S. 16 (1983)||16|
|Van Bergen v. Minnesota|
|59 F.3d 1541 (8th Cir. 1995)||10, 14, 15, 24, 25, 26, 28, 34|
|Watchtower Bible & Tract Soc'y v. Village of Stratton|
|536 U.S. 150 (2002)||8|
Constitution and Statutes:
|47 CFR § 64.1200||4|
|7 U.S.C. § 228c, Packers and Stockyards Act of 1921||20|
|47 U.S.C. § 151, et seq., Communications Act of 1934 ("FCA")||2, 33|
|47 U.S.C. § 227, Telephone Consumer Protection|
|Act of 1991 ("TCPA")||passim|
|47 U.S.C. § 227(b)(3)||19|
|47 U.S.C. § 227(c)(3)(J)||19|
|47 U.S.C. § 227(e)||10, 17, 28, 30|
|47 U.S.C. § 227(e)(1)||14, 17, 20|
|47 U.S.C. § 227(e)(1)(B)||30|
|47 U.S.C. § 227(e)(1)(C)||30|
|47 U.S.C. § 227(e)(1)(D)||30|
|47 U.S.C. § 227(e)(2)||19|
|47 U.S.C. § 227(f)||10, 19|
|47 U.S.C. § 227(f)(5)||19|
|47 U.S.C. § 227(f)(6)||19, 21|
|47 U.S.C. § 414||22, 23, 31|
|Compiled Laws - Dakota §§ 1577-81 (Dak. Terr. 1887)||10|
|Compiled Laws - Dakota § 3025 (Dak. Terr. 1887)||10|
|Compiled Laws - Dakota § 3880 (Dak. Terr. 1887)||10|
|Compiled Laws - Dakota § 3908 (Dak. Terr. 1887)||10|
|Compiled Laws - Dakota §§ 6909-10 (Dak. Terr. 1887)||10|
|Laws of Dakota § 695 (Dak. Terr. 1864-65)||10|
|Minn. Stat. § 325E.27||24|
|N.D.C.C. § 1-02-01||15|
|N.D.C.C. § 1-02-03||17|
|N.D.C.C. § 1-02-38||15|
|N.D.C.C. Ch. 49-02||9|
|N.D.C.C. Ch. 49-21||9|
|N.D.C.C. § 51-28-01(1)||4|
|N.D.C.C. § 51-28-02||4, 22, 24, 33|
|U.S. Const. Art. VI, cl. 2||6|
|U.S. Const., Amend. X .||6, 36|
|2B Norman J. Singer, Sutherland Stat. Constr. § 56.01 (5th ed. 1992)||14|
|137 Cong. Rec. S16200-04, 1991 WL 229524 (daily ed. November 7, 1991)||15|
|2003 House Standing Committee Minutes, Bill/Resolution No. SB 2255,|
|Testimony of Attorney General Wayne Stenehjem (March 10, 2003)||5|
|2003 House Standing Committee Minutes, Bill/Resolution No. SB 2255, Testimony of Parrell Grossman, Director, Consumer Protection & Antitrust Division, Office of Attorney General (March 18, 2003)||5|
|In re Telephone Consumer Protection Act of 1991 Automated|
|Telephone Consumer Protection Act, S. Rep. 102-178,|
|1991 USCCAN 1968 (1991)||3, 10, 21, 29|
|Notice of Proposed Rulemaking and Memorandum Opinion and Order|
|17 FCC Rec. 17459 (2002)||2|
|Pub. Law 102-243, 1991 S 1462 (December 20, 1991)||2, 3, 24, 36|
|Rules and Regulations Implementing the Telephone Consumer Protection|
|Act of 1991, Report and Order, 18 FCC Rec. 14014 (July 3, 2003)|
|("TCPA Order")||3, 4, 7, 10, 21, 26|
|Rules and Regulations Implementing the Telephone Consumer|
|Protection Act of 1991, 68 Fed. Reg. 44144-01 (July 25, 2003)||10, 19|
|Sunstein, C., Law and Administration After Chevron,|
|90 Colum.L.Rev. 2071 (1990)||27|
|Veronica Judy, Are States Like Kentucky Dialing The Wrong Number|
|Enacting Legislation That Regulates Interstate Telemarketing Calls?|
|41 Brandeis L.J. 681 (2003)||16|
Whether N.D.C.C. § 51-28-02 governing prerecorded voice messages directed to North Dakota telephone subscribers is preempted by the Communications Act of 1934, 47 U.S.C. § 151, et seq., as amended by the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227.
Answered by the District Court:
No. The Communications Act as amended by the Telephone Consumer Protection Act does not expressly or impliedly preempt State law, nor is there a conflict between federal law and N.D.C.C. § 51-28-02.
STATEMENT OF THE FACTS
The State of North Dakota and the United States Congress have enacted legislation with the same consumer protection objectives: reducing intrusive and unwelcome prerecorded message telephone calls.
I. TELEPHONE CONSUMER PROTECTION ACT OF 1991
The Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") amended the federal Communications Act, 47 U.S.C. § 151, et seq. ("FCA"), to address telemarketing practices, including automated calls. "Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy." Pub. Law 102-243, 1991 S 1462, § 2(10)(December 20, 1991)(emphasis added).
The legislative history of the TCPA suggests that autodialer-generated calls are more intrusive to the privacy concerns of the called party than live solicitations. An autodialer can generate far more calls to residences than a telemarketer can manually. In addition, an autodialer is frequently used to send artificial or prerecorded messages, which the legislative history suggests are often a greater nuisance and invasion of privacy than calls placed by "live" persons.
Notice of Proposed Rulemaking and Memorandum Opinion and Order, 17 FCC Rec. 17459, 17474, 24 (2002)(footnotes omitted).
When consumers attempt to place their numbers on a do-not-call list in response to a prerecorded message, they often reach busy signals, additional prerecorded messages, or are told that do-not-call requests are not processed at that number. Consumers also indicate that they have been told by telemarketers that "free" offers and informational messages are not subject to the prerecorded message prohibition, as they do not ask the called party to purchase any product or service.
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rec. 14014, 137 (2003)("TCPA Order") (footnotes omitted).
In addition, it is clear that automated telephone calls that deliver an artificial or prerecorded voice message are more of a nuisance and a greater invasion of privacy than calls placed by "live" persons. These automated calls cannot interact with the customer except in preprogrammed ways, do not allow the caller to feel the frustration of the called party, fill an answering machine tape or a voice recording service, and do not disconnect the line even after the customer hangs up the telephone. For all these reasons, it is legitimate and consistent with the constitution to impose greater restrictions on automated calls than on calls placed by "live" persons.
In re Telephone Consumer Protection Act of 1991 Automated Telephone Consumer Protection Act, S. Rep. 102-178, 1991 USCCAN 1968, 1972 (1991)(footnotes omitted).
Addressing problems associated with prerecorded messages is a substantial government interest: "[W]e believe that the record demonstrates that telemarketing calls are a substantial invasion of residential privacy, and regulations that address this problem serve a substantial government interest." TCPA Order at 66.
Congress found that "residential telephone subscribers consider automated or prerecorded telephone calls ... to be a nuisance and an invasion of privacy." It also found that "[b]anning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion." Congress determined that such prerecorded messages cause greater harm to consumers' privacy than telephone solicitations by live telemarketers. The record reveals that consumers feel powerless to stop prerecorded messages largely because they are often delivered to answering machines and because they do not always provide a means to request placement on a do-not-call list.
TCPA Order at 139 (quoting Pub. Law 102-243, § 2(12)(footnotes omitted)(emphasis added).
The TCPA granted the Federal Communications Commission ("FCC") authority to restrict artificial/prerecorded voice calls. The FCC, however, did not heed the Congressional finding that the "only effective means of protecting telephone consumers from this nuisance and privacy invasion" was "[b]anning such automated or prerecorded telephone calls." Rather, the FCC allowed broad exceptions, e.g. calls not made for a commercial purpose and calls for a commercial purpose but which do not include unsolicited advertisements. See 47 CFR § 64.1200.
II. NORTH DAKOTA'S DO NOT CALL LAW
The FCC's permissive rulemaking did not meet North Dakotans' needs. In 2003 the Legislature went the route Congress suggested (and the FCC, for whatever reason, rejected), prohibiting unwanted calls. The Legislature passed the popular "Do Not Call" law, including N.D.C.C. § 51-28-02:
Use of prerecorded or synthesized voice messages. A caller may not use or connect to a telephone line an automatic dialing-announcing device unless the subscriber has knowingly requested, consented to, permitted, or authorized receipt of the message or the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered. This section and section 51-28-05 do not apply to messages from school districts to students, parents, or employees, messages to subscribers with whom the caller has a current business relationship, or messages advising employees of work schedules.1
"I don't know that Congress represents all of the interests of the citizens of North Dakota or the other states. I think that this Legislature does that and if I could point out some of the substantial differences are that Congress has done a number of things differently." 2003 House Standing Committee Minutes, Bill/Resolution No. SB 2255, March 18, 2003, Testimony of Parrell Grossman, Director, Consumer Protection & Antitrust Division, Office of Attorney General, at 5 (Appellant's Appendix at 80). For example, North Dakota's law rejects the FCC's contention that prerecorded calls for non-commercial purposes are somehow less annoying and problematic than calls for commercial purposes. The issue of prerecorded polling calls specifically was considered and rejected. 2003 House Standing Committee Minutes, Bill/Resolution No. SB 2255, March 10, 2003, Testimony of Attorney General Wayne Stenehjem, at 17 (Appellant's Appendix at 74).
STANDARD OF REVIEW
Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law.
Riverside Park Condo. Ass'n v. Lucas, 2005 ND 26, 8, 691 N.W.2d 862.
FreeEats.com, Inc. ("FreeEats") does not challenge the trial court's determination of no material issues of fact preventing summary judgment for North Dakota; the only issue is FreeEats' affirmative defense of preemption. Whether preemption exists is a question of law. National Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999). This Court is competent to determine preemption. Consolidated Tel. Coop. v. Western Wireless Corp., 2001 ND 209, 25, 637 N.W.2d 699.
LAW AND ARGUMENT
I. THE CONSTITUTION GUARANTEES STATE SOVEREIGN AUTHORITY
A. The Constitution Defines the Scope of State Sovereignty
"[T]he North Dakota Legislature has plenary powers, except as limited by the State Constitution, the United States Constitution, and Congressional Acts in matters in which the federal government is supreme." State ex rel. Agnew v. Schneider, 253 N.W.2d 184, 187 (N.D. 1977). "We begin with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal government, subject to only limitations imposed by the Supremacy Clause." Tafflin v. Levatt, 493 U.S. 455, 458 (1990). The Supremacy Clause says:
This Constitution and Laws of the United States which shall be made in pursuant thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 2. Moreover, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people." U.S. Const., Amend. X.
B. The FCC Cannot Unilaterally Expand Its Powers of Preemption
The question is whether Congress, invoking the Supremacy Clause and expressing its will through the TCPA, intended to prevent States from exercising their police powers. FreeEats does not rely on the TCPA's plain language, but rather on overreaching FCC pronouncements as to its own authority, e.g. "we caution that more restrictive state efforts to regulate interstate calling would almost certainly conflict with our rules." TCPA Order at 82.
The FCC may not determine whether its jurisdiction extinguishes rights of a sovereign State to legislate for the benefit of its citizens. "The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law." Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986)(rejecting FCC preemption). Agency power begins and ends with its Congressional mandate; the FCC cannot create its own authority out of convenience or expediency. Louisiana Pub. Serv. Comm'n, 476 U.S. at 369, 374-75.
[W]e simply cannot accept an argument that the FCC may nevertheless take action which it thinks will best effectuate a federal policy. An agency may not confer power upon itself. To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do.
Id. at 374-75 (emphasis added).
The U.S. Supreme Court distinguishes between an agency's interpretation of a preemption provision and interpretation of a substantive provision of a statute the agency administers. In Smiley v. Citibank, 517 U.S. 735 (1996), the Court addressed whether the judiciary should defer to an Office of Comptroller of the Currency regulation defining "interest." This construction resulted in preemption of State laws providing certain late fees are unconscionable. Although deciding in favor of OCC, the Court explicitly declined to accord deference to an agency regulation purporting to preempt State law directly. The Court cautioned against preemption analysis that "confuses the question of the substantive (as opposed to pre-emptive) meaning of a statute with the question of whether a statute is pre-emptive. We may assume (without deciding) that the latter question must always be decided de novo by the courts." Smiley, 517 U.S. at 744 (emphasis in original). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, 512 (1996)(O'Connor, J., concurring in part, dissenting in part)("It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference")(emphasis in original).
C. States Have a Compelling Interest In Consumer Protection and Privacy Legislation
Section 51-28-02, like the TCPA, is a consumer protection statute defending the privacy of consumers and preventing the burdensome and annoying consequences of ADADs.
1. States' police power extends to consumer protection and privacy
A State's interest in protecting the "well-being, tranquility, and privacy of the home" is a strong, subordinating interest entitled to protection. Frisby v. Schultz, 487 U.S. 474, 484 (1988); see also Medtronic, 518 U.S. at 475 (quoting Metropolitan Life Ins. v. Massachusetts, 471 U.S. 724, 756 (1985))("[T]he States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons"); Watchtower Bible & Tract Soc'y v. Village of Stratton, 536 U.S. 150, 164-65 (2002)("residents' privacy" is among "important interests that the Village may seek to safeguard"); Rowan v. U.S. Post Office, 397 U.S. 728, 737 (1970)(homeowner may restrict material mailed to residence, emphasizing traditional importance of privacy); FCC v. Pacifica Found., 438 U.S. 726, 748 (1978)("[I]n the privacy of the home ... the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.").
There is also substantial governmental interest in the prevention of abusive and coercive sales practices. Edenfield v. Fane, 507 U.S. 761, 768-69 (1993); Cedar Rapids Cellular Tel. v. Miller, 280 F.3d 874, 880 (8th Cir. 2002)(States have a long history of regulating against unfair business practices and protecting residents' rights).
2. The States have long regulated telemarketing practices implicating state interests
Appellant's Brief, at 6, cites Home of Economy v. Burlington Northern Santa Fe R.R., 2005 ND 74, 6, 694 N.W.2d 840 for the idea the assumption against preemption is not triggered in areas of significant federal presence; but, ignores the very next sentence: "However, where a state acts in a field that states have traditionally occupied, the assumption that the historic police powers of a state are not superseded by federal law applies, unless Congress clearly and manifestly indicates a contrary intent."
There is a dual State/federal system for regulating telecommunications. Louisiana Pub. Serv. Comm'n, 476 U.S. at 360, 371, 375. North Dakota, and the Dakota Territory before it, has regulated aspects of telecommunications for 140 years, since before the invention of the telephone in 1876. See e.g. N.D.C.C. Chs. 49-02, "Powers of [Public Service] Commission Generally" and 49-21, "Telecommunications Companies."
As early as 1865 there were laws making injury to telegraph lines and interception of telegraph messages a crime. Laws of Dakota § 695 (Dak. Terr. 1864-65). By 1887 the Territory was regulating rights of way for telephone lines, Compiled Laws - Dakota § 3025 (1887); telegraph line taxation, §§ 1577-81; disclosure of telegraph dispatches, §§ 6909-10; transmission order of dispatches, § 3908; and mandating "utmost diligence" in making dispatches, § 3880.
The FCC admits, "[S]tates have a long history of regulating telemarketing practices, and we believe that it is critical to combine the resources and expertise of the state and federal governments to ensure compliance with the national do-not-call rules. In fact, the TCPA specifically outlines a role for the states in this process. See 47 U.S.C. 227(e) and (f)." Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 68 Fed. Reg. 44144-01 at 44154, 53.
Many state and consumer commenters note, however, that the TCPA contemplates a role for the states in regulating telemarketing and specifically prohibits preemption of state law in certain instances. States and consumers note that state do-not-call regulations have been a successful initiative in protecting consumer privacy rights. In addition, several commenters note the importance of federal and state cooperation in enforcing the national do-not-call regulations. The record also indicates that states have historically enforced their own state statutes within, as well as across state lines. The statute also contains a savings clause for state proceedings to enforce civil or criminal statutes, and at least one federal court [Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir. 1995)] has found that the TCPA does not preempt state regulation of autodialers that are not in actual conflict with the TCPA.
TCPA Order at 78 (emphasis added)(footnotes omitted).
II. NORTH DAKOTA'S STATUTE IS NOT PREEMPTED
A. There Are Strong Presumptions Against Preemption
Courts will not infer preemption and always presume Congress did not intend to displace State law unless Congress does so clearly and unmistakably. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)(a court will not construe a federal statute to "upset the usual constitutional balance of federal and state powers" unless Congress "[made] its intention to do so unmistakably clear in the language of the statute")(citations omitted); Federal Land Bank v. Lillehaugen, 404 N.W.2d 452, 455 (N.D. 1987)("Because of the generally interstitial nature of Federal law, a preemption of State law by Federal statute or regulation is not favored and, consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace State law.")(citing Maryland v. Louisiana, 451 U.S. 725 (1981)); Otter Tail Power Co. v. Public Serv. Comm'n, 354 N.W.2d 701, 705 (N.D. 1984)("We are authorized to start with a basic assumption that displacement of state law by a federal preemption was not intended.").
The presumption is particularly strong regarding administrative regulations.
We are even more reluctant to infer pre-emption from the comprehensiveness of regulations than from the comprehensiveness of statutes. As a result of their specialized functions, agencies normally deal with problems in far more detail than does Congress. To infer pre-emption whenever an agency deals with a problem comprehensively is virtually tantamount to saying that whenever a federal agency decides to step into a field, its regulations will be exclusive. Such a rule, of course, would be inconsistent with the federal-state balance embodied in our Supremacy Clause jurisprudence.
Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 717 (1985). And,
In New York Dept. of Social Services v. Dublino, 413 U.S. 405 ... (1973), the Court stated that "[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem." Id., at 415 ... But merely because the federal provisions were sufficiently comprehensive to meet the need identified by Congress did not mean that States and localities were barred from identifying additional needs or imposing further requirements in the field. See also De Canas v. Bica, 424 U.S. 351, 359-360 ... (1976).
Id. at 716.
Consumer protection laws enjoy an even greater presumption against preemption:
Laws concerning consumer protection, including laws prohibiting false advertising and unfair business practices, are included within the states' police power, and are thus subject to this heightened presumption against preemption. (See California v. ARC America Corp. (1989) 490 U.S. 93, ... [unfair business practices]; Smiley v. Citibank (1995) 11 Cal.4th 138, 148, ... 900 P.2d 690 [consumer protection], affd. (1996) 517 U.S. 735[.]
Black v. Financial Freedom Senior Funding Corp., 112 Cal.Rptr.2d 445, 452-53 (Cal. Ct. App. 2001).
B. Neither the TCPA Nor the FCA Mandate Preemption
1. Congressional intent is the touchstone of preemption
"Courts are reluctant to infer pre-emption ... and it is the burden of the party claiming Congress intended to pre-empt state law to prove it." North Dakota v. Liberty Nat'l Bank & Trust, 427 N.W.2d 307, 310 (N.D. 1988)(citing Lillehaugen, 404 N.W.2d at 455).. "[T]he first and fundamental inquiry in any pre-emption analysis is whether Congress intended to displace state law, and where a congressional statute does not expressly declare that state law is to be preempted, and where there is no actual conflict between what federal and state law prescribe, we have required that there be evidence of a congressional intent to pre-empt the specific field covered by the state law." Lillehaugen, 404 N.W.2d at 455 (citation omitted).
2. Field preemption requires unequivocal action by Congress
FreeEats seeks to preempt State regulation by arguing Congress intended to occupy the entire field of ADAD issues by enacting the TCPA. Appellant's Brief at 12-15. Field preemption exists only "where the scheme of federal regulation is 'so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it.'" Gade v. National Waste Mgmt. Sys., 505 U.S. 88, 98 (1972)(quoting Fidelity Fed. S&L Ass'n. v. de la Cuesta, 458 U.S. 141, 153 (1982)). Federal occupation of a field is not easily inferred:
The principle to be derived from [our] decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons - either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained.
Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963). See also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 617 (1997)(Thomas, J., dissenting)("our recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it").
TCPA field preemption has already been rejected by the Eighth Circuit.
The TCPA carries no implication that Congress intended to preempt state law; the statute includes a preemption provision expressly not preempting certain state laws. If Congress intended to preempt other state laws, that intent could easily have been expressed as part of the same provision. Further, the preemption provision [47 U.S.C. § 227(e)(1)] makes it clear that Congress did not intend to "occupy the field" of ADAD regulation, see Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 ... (1963), or to promote national uniformity of ADAD regulation, as it expressly does not preempt state regulation of intrastate ADAD calls that differs from federal regulation.
Van Bergen v. Minnesota, 59 F.3d 1541, 1548 (8th Cir. 1995).
3. The plain language of the statutes control
"In the final analysis, 'the question whether federal law in fact preempts state law in any given case necessarily remains largely a matter of statutory construction." Liberty Nat'l, 427 N.W.2d. at 310 (citation omitted); California Fed. S&L Ass'n v. Guerra, 479 U.S. 272, 280 (1987). Construction of a statute is a question of law. State v. Rambousek, 479 N.W.2d 832, 834 (N.D. 1992).
The unambiguous language of the TCPA does not support the contention Congress intended the FCC to occupy the field, to the exclusion of all others. "Courts are bound to seek for the intention of the legislature in the words of the act itself, and they are not at liberty to suppose or to hold that the legislature intended anything different from what their language imports." People v. Wintermute, 46 N.W. 694, 703 (Dak. Terr. 1875).
"If the language of a statute is clear and unambiguous, the legislative intent is presumed clear from the face of the statute." Medcenter One, Inc. v. North Dakota State Bd. of Pharmacy, 1997 ND 54, 13, 561 N.W.2d 634. ... For an ambiguous statute, "[w]here a public interest is affected, an interpretation is preferred which favors the public. A narrow construction should not be permitted to undermine the public policy sought to be served." 2B Norman J. Singer, Sutherland Stat. Constr. § 56.01 (5th ed. 1992).
Estate of Thompson, 1998 ND 226, 7, 586 N.W.2d 847. See also Doyle v. Spryncyznatyk, 2001 ND 8, 16, 621 N.W.2d 353 (the judiciary cannot legislate; it must enforce the law as it exists).
North Dakota statutes are entitled to presumptions under N.D.C.C. § 1-02-38, "1. Compliance with the constitutions of the state and of the United States is intended" and "5. Public interest is favored over any private interest." See also N.D.C.C. § 1-02-01 ("The code ...[is] to be construed liberally, with a view to effecting its objects and to promoting justice.").
a. The TCPA does not expressly preempt State law
The TCPA has no express statement of preemption. "If Congress intended to preempt other state laws, that intent could easily have been expressed as part of the same provision." Van Bergen, 59 F.3d at 1547.
The plain language controls; nonetheless, FreeEats urges consideration of legislative history. Legislative history presents arguments for and against preemption; but, the final enactment shows pro-preemption arguments failed to carry the day. An earlier draft of the TCPA expressly preempted inconsistent interstate communication laws:
In assessing the legislative history of the TCPA and Congress's intent for federal law to occupy the legislative field in the area of interstate telecommunications, reference must be made to a deleted provision in an earlier TCPA version. Senate Bill 1410 contained a specific preemption provision regarding interstate regulation, "(f) PREEMPTION OF INCONSISTENT INTERSTATE COMMUNICATIONS LAWS. - This section preempts any provision of State law concerning interstate communications that are inconsistent with the interstate communications provisions of this section." [137 Cong. Rec. S16200-04 (daily ed. Nov. 7, 1991), 1991 WL 229524] However, the provision was not included in the final version of the legislation. If a provision is deleted prior to passage, that congressional shift "militates against a judgment that Congress intended a result that it expressly declined to enact." [Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974)] Congress had the opportunity to specifically prohibit states from regulating interstate communications, but it declined. Therefore, it can be inferred that Congress intended to allow states to regulate in that area.
Veronica Judy, Are States Like Kentucky Dialing The Wrong Number Enacting Legislation That Regulates Interstate Telemarketing Calls?, 41 Brandeis L.J. 681, 691 (2003)(footnotes omitted). Even then, the provision only suggested preempting "inconsistent" laws.
The fact Congress deleted an express preemption provision from the final version of the TCPA "strongly militates" against FreeEats' argument Congress intended a result it consciously declined to enact. Gulf Oil, 419 U.S. at 200; see also Chickasaw Nation v. U.S., 534 U.S. 84, 93 (2001)(collecting cases)(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987))("We ordinarily will not assume that Congress intended 'to enact statutory language that it has earlier discarded in favor of other language.'"); United States v. Russello, 464 U.S. 16, 23-24 (1983)("Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended.").
b. The TCPA text explicitly rejects preemption
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority," Malone v. White Motor Corp., 435 U.S. [497 (1978)], at 505 ... "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 ... (1987)(opinion of Marshall, J.).
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992). In the TCPA just such a provision can be found at 47 U.S.C. § 227(e), the "savings clause." Under the savings clause certain State rights are reserved, or "saved." The TCPA provides options to States. States may impose more restrictive intrastate requirements or regulations on certain practices or States may prohibit those practices outright. Presumably a State could adopt more restrictive interstate regulations but allow the TCPA to serve as the default for interstate calls; however, a State is not required to do so.
The savings clause, 47 U.S.C. § 227(e)(1), says:
(e) Effect on State law
(1) State law not preempted
Except for the standards prescribed under subsection (d) of this section and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits-
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.
"Words and phrases must be construed according to the context and the rules of grammar and the approved usage of the language." N.D.C.C. § 1-02-03. If one parses out the language at issue and presents it as follows, the intent is even more clear:
... nothing in this section or in the regulations prescribed under this section shall preempt any State law
that imposes more restrictive intrastate requirements or regulations on
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.
, or which
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.
The term "or" is disjunctive and ordinarily indicates an alternative between different things or actions. Narum v. Faxx Foods, Inc., 1999 ND 45, 19, 590 N.W.2d 454. Here, the second "or" followed by a comma in "imposes more restrictive intrastate requirements or regulations on, or which prohibits" signals the two options are distinct. "A generally accepted rule in aid of the construction of statutes is that a limiting phrase or clause is to be restrained to the last antecedent unless the subject matter or context indicates a different legislative intent." Kohler v. Stevens, 74 N.D. 655, 24 N.W.2d 64, 72 (1946). The clause "imposes more restrictive intrastate requirements or regulations on" is separate and distinct from "or which prohibits" such that while "more restrictive ... requirements or regulations" must be "intrastate," no such "intrastate" restriction applies to a law "which prohibits" altogether. So, "intrastate" modifies "more restrictive" but does not modify "which prohibits."
Congress could have indicated the "prohibition" option applies only to intrastate calls; but, it did not do so. "Generally, the law is what the legislature says, not what is unsaid, and the mention of one thing implies the exclusion of another." Zueger v. Workers Comp. Bureau, 1998 ND 175, 11, 584 N.W.2d 530. "We are bound to give meaning and effect to every word, phrase, and sentence." Id. at 12. If prior to the TCPA there was any question as to the propriety of States regulating interstate calls, it was removed by the savings clause which codifies the traditional jurisdiction of the States.
Other provisions of the TCPA demonstrate Congress expected and accepted separate State regulation. For example, § 227(b)(3), entitled "Private right of action," explicitly states, "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 -- ..." an action for violation of the TCPA seeking an injunction and or damages. (emphasis added). The TCPA directs FCC regulations implementing the Do Not Call provisions of the TCPA shall "be designed to enable States to use the database mechanism selected by the Commission for purposes of administering or enforcing State law." 47 U.S.C. § 227(c)(3)(J)(emphasis added). Also, "a State or local authority may not, in its regulation of telephone solicitations, require the use of any database, list, or listing systems that does not include the part of such single national database that relates to such State." 47 U.S.C. § 227(e)(2)(emphasis added); see also 68 Fed. Reg. at 44154, 54. Section 227(f) gives State Attorneys General the ability to enforce the TCPA and, under § 227(f)(5), saves their investigatory powers under State law.
Finally, § 227(f)(6), "Effect on State court proceedings" says:
Nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.
In Billey v. North Dakota Stockmen's Ass'n, 1998 ND 120, 579 N.W.2d 171, this Court interpreted a similar provision in the Packers and Stockyards Act, 7 U.S.C. § 228c, which said, "That this section shall not preclude a State from enforcing State law or regulation with respect to any packer not subject to this chapter or section 204 of this title." This Court held, "This provision would be mere surplusage if Congress intended the Act to wholly occupy the field and preempt all state regulation of subjects covered by the Act. The inclusion of a specific, limited preemption provision is a clear expression of Congressional intent the Act was not meant to wholly preempt state law in this field." Id. at 31 (emphasis in original).
c. The TCPA text is unambiguous
Even if the savings clause is ambiguous with respect to preemption -- as FreeEats infers by abandoning the text of the TCPA, resorting to legislative history, FCC missives and anything except the statute's language -- the presumptions against preemption prevail. Resort to extrinsic evidence does not satisfy the requirement that "federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons - either that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Florida Lime, 373 U.S. at 142.
Somewhat optimistically, the FCC claims the TCPA is ambiguous:
Section 227(e)(1) further limits the Commission's ability to preempt any state law that prohibits certain telemarketing activities, including the making of telephone solicitations. This provision is ambiguous, however, as to whether this prohibition applies both to intrastate and interstate calls, and is silent on the issue of whether state law that imposes more restrictive regulations on interstate telemarketing calls may be preempted. As set forth below, however, we caution that more restrictive state efforts to regulate interstate calling would almost certainly conflict with our rules.
TCPA Order at 82 (footnotes omitted)(emphasis added).
FreeEats relies on another pronouncement in 84 of TCPA Order, "We therefore believe that any state regulation of interstate telemarketing calls that differs from our rules almost certainly would conflict with and frustrate the federal scheme and almost certainly would be preempted."2 FreeEats ignores the very next paragraph in TCPA Order, which completely undercuts its position:
[The National Association of Attorneys General] contends that states have historically enforced telemarketing laws, including do-not-call rules, within, as well as across, state lines pursuant to "long-arm" statutes. According to NAAG, these state actions have been met with no successful challenges from telemarketers. We note that such "long-arm" statutes may be protected under section 227(f)(6) which provides that "nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such state." Nothing that we do in this order prohibits states from enforcing state regulations that are consistent with the TCPA and the rules established under this order in state court.
TCPA Order at 85 (emphasis added)(footnotes omitted). The FCC essentially concedes State law enforcement may proceed.
Having abandoned the TCPA text, FreeEats asks this Court to infer preemption from other sources. FreeEats cites the legislative history for
instances when elected officials discuss the purported preemptive effect of the TCPA; but, it is inappropriate to resort to extrinsic evidence where, as here, there is no ambiguity. City of Dickinson v. Thress, 290 N.W. 653 (N.D. 1940)(where a statute is unambiguous, a court cannot indulge in speculation as to the probable or possible qualifications which might have been in the minds of the legislators). Besides, the statements of one or two politicians does not necessarily reflect the collective intent of the entire House of Representative and Senate, nor does it negate the statutory language.
If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. ... Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends.
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993)(Scalia, J., concurring in judgment)(emphasis in original).
d. The FCA text refutes preemption
Not finding the requisite support in the TCPA, FreeEats contends it is actually the federal Communications Act which mandates preemption. Appellant's Brief at 7-12. However, the FCA also contains a savings clause, 47 U.S.C. § 414, "Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies." Laws such as § 51-28-02 are extensions of the States' traditional consumer protection police powers.
Section 414 has been interpreted as "preserving causes of action for breaches of duties distinguishable from those created under the [FCA]." Comtronics, Inc. v. Puerto Rico Tel. Co., 553 F.2d 701, 707-08 n.6 (1st Cir. 1977). For example, the FCA does not preempt state tort law regarding invasion of privacy. Ashley v. Southwestern Bell Tel. Co., 410 F.Supp. 1389, 1392-93 (W.D. Tex. 1976). Nor are laws forbidding telephone harassment, unfair, deceptive or fraudulent sales practices preempted. See e.g. Moriconi v. AT&T Wireless PCS, LLC, 280 F.Supp.2d 867, 874-75 (E.D. Ark. 2003)("The statutory language, the legislative history, and the [FCA] savings clause compel the conclusion that Congress envisioned that consumers would not be deprived of their state law causes of action for consumer related fraud" and discussing "the overwhelming authority declining to find complete preemption in the context of the FCA")(emphasis added); Cooperative Communications, Inc. v. AT&T, 867 F.Supp. 1511, 1516 (D. Utah 1994)("the savings clause clearly indicates Congress' intent that independent state law causes of action, such as interference with contract or unfair competition, not be subsumed by the Act, but remain as separate causes of action."); Pinney v. Nokia, Inc., 402 F.3d 430, 450 (4th Cir. 2005)("The presence of [§ 414] counsels against a finding that Congress intended to sweep aside all state claims in a particular area.").
"The court in Castellanos v. U.S. Long Distance Corp., 928 F.Supp. 753 (N.D. Ill. 1996), took the import of the survival clause one step further and interpreted the clause to preserve state law claims alleging breach of the same duties that were created under the Act." DeCastro v. AWACS, Inc., 935 F.Supp. 541, 551-52 (D. N.J. 1996)(emphasis in original); see also City of Ellensburg v. King Videocable Co., 1993 WL 816526 (E.D. Wash. 1993); Lewis v. Nextel Communications, Inc., 281 F.Supp.2d 1302, 1305 (N.D. Ala. 2003)(citing Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001)("the savings clause ... contemplates the application of state law and the exercise of state-court jurisdiction. ... If there is state-court jurisdiction the jurisdiction cannot be exclusively federal.").
III. COURTS REJECT FCA AND TCPA PREEMPTION OF STATE TELEMARKETING LAW
A. Van Bergen held the TCPA does not preempt State law governing ADADs
In Van Bergen the Eighth Circuit addressed TCPA preemption with respect to the Minnesota statute regulating automatic dialing-announcing devices calls.3 A gubernatorial candidate argued the TCPA preempted Minnesota's
statute prohibiting ADADs.4
As discussed by Judge Gail Hagerty in Opinion and Order, Record on Appeal #48 ("Opinion"), the Eighth Circuit analyzed and rejected express, field and conflict preemption.
The Court cited the savings clause of the TCPA, stating state laws are not preempted if the State "imposes more restrictive intrastate requirements or regulations on , or which prohibits-- ... (B) the use of automatic telephone dialing systems. ..." ... There was no express preemption of the Minnesota statute found in the TPA by Van Bergen. The TCPA simply does not state more restrictive state laws are preempted, only that more restrictive intrastate requirements are not preempted. If Congress wanted to expressly preempt state ADAD law it would have done so explicitly."
The TCPA did not preempt the Minnesota statute by implication. ... While it is possible for federal law to preempt state law by implication, the TCPA was found not to carry such an implication. ... The Court stated: "If Congress intended to preempt other state laws, that intent could easily have been expressed as part of [the savings clause]." ... The Court held Congress did not intend to "occupy the field" of ADAD regulation ... or to promote national uniformity of ADAD regulation, as it expressly does not preempt state regulation of intrastate ADAD that differs from federal regulation." ... The Minnesota statute was not preempted for this reason, nor should the nearly identical North Dakota statute be preempted.
The Minnesota statute did not conflict with the TCPA. ... Only two differences were found between the TCPA and the "virtually identical" Minnesota statutes: 1) the TCPA exempts only emergency calls, and the Minnesota statute exempts callers with prior personal or business relationship from restrictions on ADAD calls; 2) The TCPA only applies to residences and specified businesses, such as hospitals, and the Minnesota statute applies to both residences and businesses. ... The Court found "it was clear that the Minnesota statute and the TCPA [were] designed to promote an identical objective, and that there [was] nothing in the two statutes that create[d] a situation in which an individual [could not] comply with one statute without violating the other." ... The same is true for the North Dakota statute.
Opinion at 4-6 (citations omitted).
Contrary to FreeEats' argument, Congress enacted the TCPA as a gap filler, not to preempt State law.
The congressional findings appended to the TCPA state that "[o]ver half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operation; therefore, Federal law is needed to control residential telemarketing practices. 47 U.S.C. § 227, Congressional Statement of Findings (7). This finding suggests that the TCPA was intended not to supplant state law but to provide interstitial law preventing evasion of state law by calling across state lines."
Van Bergen, 59 F.3d at 1548.
FreeEats argues the trial court's reliance on Van Bergen is fatally flawed because it predated the decisions in Geier v. American Honda Motor Co., 529 U.S. 861 (2000) and United States v. Locke, 529 U.S. 89 (2000) which purportedly stand for the proposition that statutory savings clauses do not insulate state enactments from preemption analysis. Appellant's Brief at 21-22. Actually, Geier rejected the argument that a savings clause created some "special burden" in conflict preemption analysis. Geier, 529 U.S. at 872-73. North Dakota does not argue the savings clause creates a "special burden" or "insulate[s] state enactments from preemption analysis"; rather, simply applying well-established preemption analysis, including savings clauses, supports the State's position.
Also, FreeEats claims Van Bergen is invalid because it was decided before the TCPA Order, which said at 84, "We therefore believe that any state regulation of interstate telemarketing calls that differs from our rules almost certainly would conflict with and frustrate the federal scheme and almost certainly would be preempted." FreeEats suggests this self-serving, nebulous statement by the FCC somehow compels the Court to defer to the agency and find preemption. The FCC, however, simply is not competent to determine the TCPA' preemptive effect. Smiley, 517 U.S. at 744; Medtronic, 518 U.S. at 512.
"[I]t would ... seem[ ] exceedingly odd to suggest that [an agency] should be allowed to resolve ambiguities in a statute governing its own jurisdiction. The danger of bias and self-dealing is so great as to make [the agency] an interested party." Sunstein, [Law and Administration ]After Chevron, 90 COLUM.L.REV.  at 2099 [(1990)]. This court agrees that there is a danger of bias and self-dealing in such a situation. As the Supreme Court has said, "To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do." Louisiana Pub. Serv. Comm'n, 476 U.S. at 374-75[.] Congress, not the agency, determines the authority it delegates to the agency. This court must therefore seek congressional intent without deference to the agency in order to ensure that the agency does not "expand its power in the face of a congressional limitation on its jurisdiction." Id.
Garrelts v. SmithKline Beecham Corp., 943 F.Supp. 1023, 1049 (N.D. Iowa 1996).
To put it another way, because an agency has no more power to preempt state law than is delegated to it by Congress, Louisiana Pub. Serv. Comm'n, 476 U.S. at 374 ... and the "clear and manifest purpose of Congress" is required to dispel the presumption against federal preemption of traditional state police powers, Rice[ v. Santa Fe Elevator Corp., 331 U.S. 218, 231 (1947)] ... agency intent cannot be substituted for congressional intent.
Id. at 1050.
Even if FreeEats' contentions were meritorious, there exist ample other grounds upon which to affirm. "It is the correctness of the order, and not the reasons assigned for it by the trial judge, that is to be reviewed in this court, and it is only when all of the grounds urged in support of the motion are insufficient that it will be reversed." Davis v. Dinnie, 13 N.D. 430, 101 N.W. 314 (N.D. 1904)(motion for new trial).
B. At Least Four Other U.S. Courts of Appeals Have Rejected the Broad Preemptive Effect of the TCPA Argued by FreeEats
FreeEats and the FCC favor an interpretation of the TCPA which results in preemption of State law; however, that interpretation flies in the face of at least five (including Van Bergen) U.S. Courts of Appeals decisions.
The Fourth Circuit, in International Science & Tech. Inst., Inc., v. Inacom Communication, Inc., 106 F.3d 1146, 1153 (4th Cir. 1997) held the TCPA does not preempt:
In any event, International Science's preemption argument must be rejected at its beginning because Congress stated that state law is not preempted by the TCPA. See 47 U.S.C. § 227(e) ("nothing in this section ... shall preempt any State law that imposes more restrictive intrastate requirements ... or which prohibits" certain enumerated practices (emphasis added)).
International Science, 106 F.3d at 1153 (emphasis in original).
The Eleventh Circuit adopted the Fourth Circuit's analysis:
The Fourth Circuit rejected the argument that Congress intended to establish concurrent jurisdiction manifested through its preemptive occupation of interstate telecommunications for two reasons. Id. at 1153. First, it determined that even if the Act preempted substantive state law, the Act specifically provided for state courts to hear cases under the Act unless there was a contrary congressional intent. Id. Second, it noted that the Act specifically held that it did not preempt any state law that imposed more restrictive intrastate requirements or which prohibited certain practices. Id.
Nicholson v. Hooters of Augusta, Inc.,136 F.3d 1287, 1289 (11th Cir. 1998)(citing International Science).
The Fifth Circuit also adopted the reasoning of International Science:
The history and purpose of this statute provide further support for the conclusion that Congress intended to confer exclusive jurisdiction upon the state courts. Congress enacted the TCPA as a supplement to state efforts to regulate telemarketing activities. This nonconsensual telemarketing activity was viewed by Congress as an invasion of privacy, an impediment to interstate commerce, and a disruption to essential public safety services. S. Rep. No. 178, 102nd Cong., 1st Sess. 1, 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1973. Congressional action was needed as states had no independent regulatory power over interstate telemarketing activities. Id., 47 U.S.C. § 227, Congressional Finding No. 7. By creating a private right of action in state courts, Congress allowed states, in effect, to enforce regulation of interstate telemarketing activity.
Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 513 (5th Cir. 1997).
The Third Circuit confirms the TCPA simply does not cast as long a shadow as FreeEats suggests:
Furthermore, the statute does not appear to reflect any significant federal interest, or one that is uniquely federal. It does 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.
ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 516 (3d Cir. 1998)(emphasis added).
The five U.S. Courts of Appeals to address the TCPA preemption issue have come down against wholesale preemption. Congress intended to enhance State enforcement, not impair it:
Indeed, from top to bottom, the private TCPA action reflects Congress' intent to enhance state sovereignty. Congress enacted the TCPA to assist states where they lacked jurisdiction; it empowered states themselves to enforce the TCPA in federal court; it authorized private
enforcement exclusively in state courts; and it recognized state power to reject Congress' authorization.
International Science, 106 F.3d at 1158 (emphasis added).5
C. The U.S. Supreme Court Rejects the Broad Preemptive Effect of the FCA Argued by FreeEats
FreeEats argues the TCPA, being part of the federal Communications Act is entitled to the same preemptive effect afforded the FCA. FreeEats should be careful what it wishes for; the U.S. Supreme Court has ruled the FCA does not preempt all State laws simply touching upon an area regulated by the FCC, particularly where local interests and police powers are implicated.
In Head v. New Mexico Bd. of Exam'rs, 374 U.S. 424 (1963) the Court reviewed an action to enjoin a New Mexico radio station from accepting a Texas optometrist's advertising. The lower court granted an injunction based on a New Mexico law proscribing price certain advertising; the radio station appealed.
One argument rejected by the Supreme Court was that the FCA's broad grant of regulatory power to the FCC was sufficient to preempt State law regulating radio advertising.
The nature of the regulatory power given to the federal agency convinces us that Congress could not have intended its grant of authority to supplant all the detailed state regulation of professional advertising practices, particularly when the grant of power to the Commission was accompanied by no substantive standard other than the 'public interest, convenience, and necessity.' The Solicitor General has conceded that the power of license revocation is not a plausible substitute for state law dealing with 'traditional' torts or crimes committed through the use of radio. We can find no material difference with respect to the less 'traditional' statutory violation here involved. In the absence of positive evidence of legislative intent to the contrary, we cannot believe Congress has ousted the States from an area of such fundamentally local concern.
Head, 374 U.S. at 431-32 (emphasis added).
Justice Brennan, concurring, acknowledged an interest in uniformity of regulation; but, reinforced the notion States' rights were not to be sacrificed on the altar of standardization:
But that language should not be read as construing the Communications Act to mandate the ouster of all local regulation the application of which might in any way prevent perfect national uniformity. Indeed, even the Solicitor General, in his brief as amicus curiae, concedes as much by his recognition that Congress intended the survival of certain 'traditional' state powers and remedies -- particularly common-law tort and traditional criminal sanctions.
Head, 374 U.S. at 433 (footnote omitted). He continued,
Rather than mandate ouster of state regulations, several provisions of the Communications Act suggest a congressional design to leave standing various forms of state regulation, including the form embodied in the New Mexico statute. First, the Act contains a 'saving clause,' 47 U.S.C. s 414, providing that 'Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' Of course such a general provision does not resolve specific problems, Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 671, n.22 ..., but its inclusion in the statute plainly is inconsistent with congressional displacement of the state statute unless a finding of that meaning is unavoidable. Second, the statutory regulation of radio and television broadcasting is far less comprehensive than the regulation in the very same title of telephone and telegraph facilities, Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U.S. 470, 474 ... -- yet even as to those means of communications some subjects and remedies are saved to state regulation.
Id. at 443-44 (footnote omitted).
Justice Brennan recognized States' traditional police powers are not easily preempted.
The New Mexico law is one designed principally to protect the State's consumers against a local evil by local application to forbid certain forms of advertising in all mass media. Such legislation, whether concerned with the health and safety of consumers, or with their protection against fraud and deception, embodies a traditional state interest of the sort which our decisions have consistently respected. Rice[, 331 U.S. at 230.]
Id. at 445. See also Marcus v. AT&T Corp., 138 F.3d 46, 54 (2d Cir. 1998)("absent some express statement or other clear manifestation from Congress that it intends the complete preemption doctrine to apply, we believe that federal common law does not completely preempt state law claims in the area of interstate telecommunications."); In Re Universal Serv. Fund Tel. Billing Practice Litig., 247 F.Supp.2d 1215, 1221, 1226 (D. Kan. 2002)(FCA does not completely preempt state fraud claims where companies misrepresented interstate call charges); Minnesota v. WorldCom, Inc., 125 F.Supp.2d 365, 372 (D. Minn. 2000)(permitting lawsuit by State attorneys general for false advertising as applied to promotion of interstate long-distance services); A.S.I. Worldwide Communications Corp. v. WorldCom, Inc., 115 F.Supp.2d 201, 207 (D. N.H. 2000)("I cannot reasonably infer that Congress manifested a clear intention to occupy the entire interstate telecommunications field to the exclusion of any state regulation in that area.")
IV. CONFLICT PREEMPTION IS INAPPLICABLE
North Dakota's statute does nothing to impair services by common carriers and does not prevent implementation of "a rapid, efficient ... communication service with adequate facilities at reasonable charges" as mandated by the FCA. 47 U.S.C. § 151. Companies like FreeEats which violate the do not call law are not acting as common carriers or providers of telecommunications services; instead, such companies are merely customers of common carriers which serve as an instrument by which illegal calls are made. Rather than impede the service objectives of the FCA, North Dakota's law merely protects the interests of those who do not wish to receive prerecorded messages.
The Legislature is presumed to know the law when enacting legislation. Comstock Const., Inc. v. Sheyenne Disposal, Inc., 2002 ND 141, 651 N.W.2d 656. The TCPA and the Supremacy Clause were in existence years before § 51-28-02 and the North Dakota Legislature must be presumed to have considered their effect on its own legislation. And while the result of § 51-28-02 may be non-identical standards for telemarketers under the State versus the federal law, such a result is not prohibited absent genuine "conflict preemption."
Conflict preemption requires the Court be "convinced that there is an 'actual conflict' for pre-emption purposes" between federal law and State law. State v. Liberty Nat'l Bank & Trust, 427 N.W.2d 307, 314 (N.D. 1988)(reversing improper dismissal on grounds of conflict preemption); see also Northwestern Federal S&L v. Ternes, 315 N.W.2d 296, 301-02 (N.D. 1982)(to have preemption it is essential State law exist in opposition or contrary to federal law); English v. General Elec. Co., 496 U.S. 72, 90 (1990). "Conflict pre-emption occurs where compliance with both federal and state laws is a physical impossibility[.]" Liberty Nat'l, 427 N.W.2d at 309. "A state law is not invalid under the Supremacy Clause merely because it differs from a federal law. ... Rather, the inquiry is whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 310 (citations omitted).
"Thus, if it is possible to comply with both federal and state law, there is neither a conflict nor a frustrated purpose." Bravman v. Baxter Healthcare Corp., 842 F.Supp. 747, 753 (S.D. N.Y. 1994); see also Ginochio v. Surgikos, Inc., 864 F.Supp. 948, 951 (N.D. Cal. 1994)(same). Again, Van Bergen, "It is clear that the Minnesota statute and the TCPA are designed to promote an identical objective, and that there is nothing in the two statutes that creates a situation in which an individual cannot comply with one statute without violating the other." 59 F.3d at 1548.
"When two or more conflicting statutes or rules relate to the same subject matter in general, every effort should be made to give meaningful effect to each without rendering one or the other useless." Keyes v. Amundson, 343 N.W.2d 78, 83 (N.D. 1983). "Statutes and rules are to be construed in a way which does not render them useless, and because the law neither does nor requires idle acts we will not assume that any statute or rule was intended to be useless rhetoric." Id.
Where State and federal law have the same objective -- here, to protect consumers from uninvited prerecorded messages -- the laws compliment one another. In Liberty Nat'l, supra, this Court addressed the interplay of State and federal laws relating to national banks, specifically those relating to property ownership.
As we have noted, the primary purpose of each law is the same, i.e., preventing banks and corporations from becoming monopolistic holders of real estate. So too, there is a similar congruity of the secondary goals, i.e., providing a measure of protection to banks and corporations through the respective legislative bodies' reasonable choices of appropriate divestiture periods. Thus, the state law is not repugnant to the purposes and objectives of the federal law. By incorporating the federal proscription against banks holding real estate "in mortmain," state law, in fact, enhances the primary purpose of the federal statute. ... "[W]here ... the state law enhances the primary and overall purpose of the federal law, it is not invalid under the Supremacy Clause." Rousseff v. Dean Witter & Co., Inc., [453 F.Supp. 774, 782)(N.D. Ind. 1978)].
Liberty Nat'l, 427 N.W.2d at 314-15 (citations omitted). Section 51-28-02 and the TCPA, having the same objectives, likewise compliment one another. See also Commonwealth v. Sow, 860 A.2d 154, 159 (Pa. Super. 2004)("Appellant has not articulated how the existence of state criminal penalties for trademark infringement stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Rather, state criminal penalties simply "complement[ ] and supplement [ ]" federal criminal penalties for trademark infringement.").
FreeEats argues the TCPA preempts North Dakota law because it would frustrate supposed Congressional goals of regulatory uniformity. Nowhere in the Congressional findings of the TCPA is there mention of uniformity being an objective of Congress. Pub. L. 102-243, § 2. Courts do not find the interest in uniformity overly persuasive, either.
But where a federal rule is not essential, or where state law already operates within a particular field, we have applied state law rather than opting to create federal common law. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 730 ... (1979)(rejecting "generalized pleas for uniformity" as a basis for creating federal common law); see also Atherton v. FDIC, 519 U.S. 213, 225-226 ... (1997)(same).
Camps Newfound/Owatonna, Inc., 520 U.S. at 615 (Thomas, J., dissenting).
Accepting, arguendo, uniformity of regulation is an important goal of the TCPA, nonetheless, the ability to impose uniformity must arise from within the confines of the TCPA itself. The perceived federal interest in uniformity ends where the State's interest in self-determination begins. U.S. Constitution, Amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people."). In other words, Congressional commentary may indicate uniformity is laudable; but, unless Congress correspondingly grants the FCC statutory power to preempt, the FCC is limited to the tools actually given to it. See Louisiana Pub. Serv. Comm'n, supra. The TCPA actually does promote uniformity, particularly where it establishes a "floor" or minimum set of standards even in States without Do Not Call statutes; however, the paramount goal of the TCPA is consumer protection, not some overweening regulatory uniformity.
The FCC prevailed against an attempt to declare TCPA restrictions on ADAD devices invalid:
That some companies prefer the cost and efficiency of automated telemarketing does not prevent Congress from restricting the practice. Kovacs v. Cooper, 336 U.S. 77, 88-89 ... (1949)("That more people may be more easily and cheaply reached ... is not enough to call forth constitutional protection for what those charged with public welfare reasonably think is a nuisance when easy means of publicity are open.").
Moser v. FCC, 46 F.3d 970, 975 (9th Cir. 1995). The same holds true for North Dakota's statute.
North Dakota respectfully requests this Court affirm the District Court's judgment and uphold the validity of N.D.C.C. § 51-28-02.
Dated this ____ day of August, 2005.
|STATE OF NORTH DAKOTA|
|James Patrick Thomas|
|Assistant Attorney General|
|State Bar ID No. 06014|
|Office of Attorney General|
|4205 State Street|
|PO Box 1054|
|Bismarck, ND 58502-1054|
|Telephone (701) 328-5570|
|Facsimile (701) 328-5568|
|Attorney for Appellee.|
1 "'Automatic dialing-announcing device' ["ADAD"] means a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called." N.D.C.C. § 51-28-01(1).
2 The FCC goes on to say, "We will consider any alleged conflicts between state and federal requirements and the need for preemption on a case-by-case basis. Accordingly, any party that believes a state law is inconsistent with section 227 or our rules may seek a declaratory ruling from the Commission." FCC Order at 84. This approach necessarily includes the possibility there are cases where State law is not preempted, confirming not even the FCC believes field preemption is appropriate.
3 The statute, Minn. Stat. § 325E.27, is virtually identical to NDCC § 51-28-02. Van Bergen, 59 F.3d at 1545 n.2:
325E.27. Use of prerecorded or synthesized voice messages
A caller shall not use or connect to a telephone line an automatic dialing-announcing device unless: (1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber's consent before the message is delivered. This section and section 325E.30 do not apply to (1) messages from school districts to students, parents, or employees, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules.
4 Recognizing the fatal consequences of Van Bergen, FreeEats tries to distinguish the decision on the theory it involved only intrastate calls. Appellant's Brief at 20-21. But, the record does bear not this out. Moreover, if it was the case, why did the Eighth Circuit go to the trouble of addressing and dismissing the preemption issue? If the calls were intrastate, the TCPA exception unequivocally allowing for more restrictive intrastate regulations would without question have allowed Minnesota to do what it was doing - there would have been no reason for the Court to address field preemption. This reasoning was adopted by the trial court. Opinion at 6.
5 See also Order, June 4, 2004, Florida v. Sports Auth. Florida, Inc., U.S. Dist. Ct., Middle Dist. Fla., Case No. 6:04-CV-115-Orl-JGG, at 5-6 ("In other words, while the Sports Authority points to the TCPA as preempting the state-law unsolicited-sales-call and improper-use-of-prerecorded-messages claims against it, the TCPA itself expressly disavows any intent to preempt such claims. See 47 U.S.C. § 227(e)(1)(B), (C) and (D)")(emphasis in original); Order, March 8, 2004, North Carolina v. Debt Management Found. Serv., Inc., U.S. Dist. Ct., E. Dist. N.C., Case No. 5:03-CV-950-FL(3), at 16-17 ("Weighing further against complete preemption by the TCPA, the act explicitly recognizes several areas in which state law is not preempted. In particular, 'nothing in [the TCPA] shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits ... (C) the use of artificial or prerecorded voice messages[']")(emphasis in original)(citing 47 U.S.C. § 227(e)) and at 17-18 ("Accordingly, the court finds no clear intent on the part of Congress to prevent states from bringing state law causes of action against interstate telemarketers in state court.")(Copies of the Orders are at Record on Appeal #79).