Foxhall Realty Law Offices v. Telecom. Prem. Serv., No. 96 CV 9439 (BDP).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Parker
• Citation: 975 F.Supp. 329
• Parties: FOXHALL REALTY LAW OFFICES, INC., on behalf of itself and all others similarly situated, Plaintiff, v. TELECOMMUNICATIONS PREMIUM SERVICES, LTD., d/b/a TPS Call Sciences, Defendant.
• Decision Date: 28 August 1997
• Docket Number: No. 96 CV 9439 (BDP).

Page 329

975 F.Supp. 329 FOXHALL REALTY LAW OFFICES, INC., on behalf of itself and all others similarly situated, Plaintiff,
v.
TELECOMMUNICATIONS PREMIUM SERVICES, LTD., d/b/a TPS Call Sciences, Defendant. No. 96 CV 9439 (BDP). United States District Court, S.D. New York. August 28, 1997.

Page 330

Robert J. Schechter, Schechter & Nimkoff, LLP, New York City, for Plaintiffs.

Warren Anthony Fitch, Swidler & Berlin, Chtd., Washington, DC, for Defendants.

MEMORANDUM DECISION AND ORDER

PARKER, District Judge.

Plaintiff Foxhall Realty Law Offices, Inc. ("Foxhall") brings this action against Telecommunications Premium Services, Ltd. ("TPS") alleging that TPS transmitted to it, by facsimile, an unsolicited advertisement in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("the Act" or "TCPA"). Before the Court is defendant's motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction and, pursuant to Fed.R.Civ.P. 12(b)(2), for lack of personal jurisdiction. For the reasons stated below, the motion is granted.

BACKGROUND

For the purposes of this motion, the material facts alleged in the complaint are taken as true. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996); O'Brien v. Alexander, 101 F.3d 1479, 1484 (2d Cir.1996). TPS is a privately held telecommunications company which provides a "personal assistant" service to its customers. A TPS customer using this service is assigned a single telephone number, and his or her incoming calls on that number are routed to any of several other telephone numbers used by the customer.

Foxhall alleges that on November 5, 1996, it received, in its facsimile machine, a two-page advertisement for TPS's "personal assistant" services. Foxhall contends that the advertisement was sent without its prior express invitation or permission. Foxhall subsequently filed this putative class action suit alleging that defendant, by transmitting the unsolicited advertisement, violated 47 U.S.C. § 227(b)(3).

DISCUSSION

The TCPA was enacted to "protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile ([f]ax) machines and automatic dialers." International Science & Technology Inst., Inc. v. Inacom, 106 F.3d 1146, 1150 (4th Cir.1997). The TCPA prohibits the use of "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1)(C). The Act further creates a private right of action for violations of its provisions. Specifically, it provides that "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 based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation." 47 U.S.C. § 227(b)(3).

Defendant argues that state courts have exclusive jurisdiction over private causes of action brought pursuant to 47 U.S.C. § 227(b)(3), and that this Court, accordingly, lacks subject matter jurisdiction over this action. Our Court of Appeals has not had occasion to address this question.¹ The Fourth Circuit, the only Court of Appeals that has directly confronted the issue recently held that "[w]hile Congress...