State ex rel. Stenehjem v. FreeEats.com, Inc. - No. 20050171
FreeEats.com appeals from a district court summary judgment finding that FreeEats.com had violated North Dakota's "do-not-call" law and assessing civil penalties of $10,000 and costs and attorneys' fees of $10,000.
FreeEats.com uses automated dialing and prerecorded messages to conduct telephonic polls and surveys. Prior to September 13, 2004, FreeEats.com used an automatic dialing-announcing device to make political polling calls from the state of Virginia to residents of the state of North Dakota. The recipients of the calls had not requested nor consented to receipt of the messages.
On September 17, 2004, the State brought this action against FreeEats.com alleging violation of N.D.C.C. § 51-28-02, part of the do-not-call statute, and sought civil penalties, costs, and attorneys' fees. FreeEats.com did not dispute that it made the calls, but claimed enforcement of N.D.C.C. § 51-28-02 was preempted by the federal Telephone Consumer Protection Act. The district court granted summary judgment in favor of the State, concluding that the federal act did not preempt N.D.C.C. § 51-28-02. The court assessed civil penalties of $10,000 and costs and attorneys' fees of $10,000 against FreeEats.com.
FreeEats.com has appealed from the judgment, alleging that enforcement of N.D.C.C. § 51-28-02 is preempted by the federal act.