Holcomb v. Jan-Pro Cleaning Sys. of So. Co., 06SC757.

• Decision Date: 17 December 2007
• Docket Number: No. 06SC757.,06SC757.
• Citation: 172 P.3d 888
• Parties: John HOLCOMB, Petitioner v. JAN-PRO CLEANING SYSTEMS OF SOUTHERN COLORADO, Respondent.
• Court: Colorado Supreme Court

172 P.3d 888

John HOLCOMB, Petitioner v. JAN-PRO CLEANING SYSTEMS OF SOUTHERN COLORADO, Respondent.

No. 06SC757.

Supreme Court of Colorado, En Banc.

December 17, 2007.

Lisa W. Stevens, Monument, Colorado, Max G. Margulis, Chesterfield, Missouri, Attorneys for Petitioner.

Allen & Vellone, P.C., Mark A. Larson, Kevin D. Allen, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Holcomb petitioned for review of a judgment of the district court affirming the county court's verdicts in favor of Jan-Pro on two claims of committing deceptive trade practices. The county court magistrate found that Jan-Pro had not violated the Colorado No-Call List Act for the reason that Jan-Pro fell within a defense for callers who have established procedures to prevent solicitations in violation of the Act. Although it affirmed, the district court held simply that by using his phone for business purposes, Holcomb had removed himself from the protected class of residential subscribers and was therefore no longer entitled to the protections of the Act.

Because the unambiguous language of the statute includes Holcomb within the class of residential subscribers protected by the no-call list, the district court erred, and its judgment is reversed.

I.

John Holcomb filed claims in the Small Claims Division of the County Court, as permitted by the Colorado No-Call List Act,¹ alleging that Jan-Pro Cleaning Systems of Southern Colorado committed deceptive trade practices by violating both the registration and no-call provisions of the Act. Undisputed testimony at a trial to the county court magistrate indicated that Holcomb subscribed to residential telephone service with a local exchange provider, within the meaning of the Act, and that Jan-Pro had solicited him regarding its cleaning services, over a telephone for which he had subscribed to residential service. It was also uncontested, however, that Holcomb sometimes used his residential telephone to make business calls and that Jan-Pro had acquired his telephone number from a calling list of business numbers obtained from Info USA and Dun & Bradstreet. Jan-Pro's representative testified that it chose not to register with the Colorado Secretary of State as a telemarketing business because it had no intention of marketing to residences.

Following trial to the court, the magistrate ruled against Holcomb on both claims. Without making specific findings of fact or conclusions of law about the no-call prohibition itself, the magistrate found that Jan-Pro fell within a statutory defense for callers who establish written practices and procedures to effectively prevent themselves from inadvertently violating the Act. It also found that as a solicitor of businesses only, Jan-Pro was not required by the Act to register as a telephone solicitor. Holcomb appealed the judgment to the district court on both counts.

Acting in its appellate capacity, the district court affirmed the judgment below. Rather than addressing the magistrate's finding of a statutory defense, however, the district court construed the statute to completely exclude from the Act's protected class of residential subscribers any person listing his telephone number both as a residential phone and as a business phone, despite having subscribed to residential telephone service with a local exchange provider, in compliance with the Act. The district court therefore concluded that Jan-Pro had not solicited a "residential subscriber" within the meaning of the Act, despite soliciting Holcomb on a telephone for which he had subscribed to residential service and the number of which he had added to the official Colorado no-call list. Similarly, it agreed with the magistrate that the registration requirements of the Act did not apply to Jan-Pro because there was no evidence that it solicited residential subscribers.

Holcomb petitioned this court for a writ of certiorari, seeking reversal of the district court's ruling.²

II.

Part 9 of the Colorado Consumer Protection Act, see title 6, article 1, of the Colorado Revised Statutes, is designated the "Colorado No-Call List Act." The Act provides for the creation of a list, or database, of residential subscribers and wireless telephone service subscribers who object to receiving telephone solicitations, see § 6-1-905(1);³ and it bars as a deceptive trade practice any telephone solicitation to the telephone of a residential subscriber or wireless service subscriber in this state who has added his number and zip code to the Colorado no-call list, see § 6-1-904(1)(a).⁴ As used in the Act, "residential subscriber" is a statutorily-defined term of art, which expressly includes any person who has subscribed to residential telephone service with a local exchange provider. See § 6-1-903(9).⁵

Nothing in the provision establishing and prescribing the operation of the no-call list, see § 6-1-905; the proscription against soliciting residential subscribers on the list, see § 6-1-904; or the definition of "residential subscriber" itself, see § 6-1-903(9), suggests that using a no-call listed telephone for business purposes or permitting it to appear on commercial telephone listings causes an otherwise qualifying "residential subscriber" to somehow lose the protections of the Act. And nowhere does the district court suggest a construction of the language of these provisions that might lead to that conclusion. Instead, without embellishing on its significance, the district court's written ruling appears to rely exclusively on a sentence from the Act's declaration of legislative purpose, indicating that "[i]ndividuals' privacy rights and commercial freedom of speech should be balanced in a way that accommodates both the privacy of individuals and legitimate telemarketing practices." See § 6-1-902(1)(c).

A court's objective in interpreting statutes is to determine the intent of the legislature, as expressed in the language of the statute itself. Martinez v. People, 69 P.3d 1029, 1031 (Colo.2003). If the language in which a statute is written is susceptible of more than one reasonable interpretation, and is therefore ambiguous, a body of accepted intrinsic and extrinsic aids to construction may be applied to determine the particular reasonable interpretation embodying the legislative intent. Frank M. Hall & Co. v. Newsom, 125 P.3d 444, 448 (Colo.2005). If a statute is clear and unambiguous, however, and is not in conflict with other statutes, it must be applied as written. Sooper Credit Union v. Sholar Group Architects, P.C., 113 P.3d 768, 771 (Colo.2005).

Even if a general declaration of legislative policy could create, rather than merely help resolve, ambiguity in or conflicts among specific definitional or proscriptive provisions, no ambiguity or conflict exists here. The legislative declaration makes clear that the General Assembly's goal was to "establish a mechanism under which the individual citizens of this state can decide whether or not to receive telephone solicitations by phone or fax." § 6-1-902(1)(e). While the legislative declaration also identifies the competing interests the General Assembly considered necessary to balance in order to accomplish that goal, the statute does not purport to dilute or further limit the specific proscription it imposes against soliciting numbers from the statutory no-call list.

The statutory scheme actually adopted by the General Assembly unambiguously evidences the balance it has struck to accommodate these competing interests. In no uncertain terms, it specifies precisely who qualifies as a "residential subscriber;" how a residential subscriber can have his telephone number placed on the official no-call list; and when soliciting a number on that list is proscribed as a deceptive trade practice. The Act also specifically provides two, but only two, grounds for excusing conduct that would otherwise amount to a violation.

The Act excuses calls resulting from errors in transcription or other technical defects, and it also provides a complete defense for callers who have otherwise fully complied with the requirements of the Act and have, in addition, both established and implemented written practices and procedures to effectively prevent violations. See § 6-1-906(2). While the Act does not further prescribe those practices and procedures, it does specify that "persons or entities desiring to make telephone solicitations shall update their copies of the Colorado no-call list, conforming consolidated no-call list,⁶ or a list obtained from a conforming list broker within thirty days after the beginning of every calendar quarter, on or after July 1, 2002 . . . ." See § 6-1-904(4). In this way, the legislature makes clear its choice to protect commercial speech by providing telephone solicitors with a definitive and accessible list of all those numbers that may not be called, while simultaneously imposing on them the burden of maintaining and requiring consultation of the list to avoid noncompliance with the Act.

III.

The district court found that by listing his telephone number both as a residential phone and as a business phone, Holcomb removed his telephone number from the definition of a residential subscriber. It therefore concluded that Holcomb was not entitled to the protections of the Colorado no-call list for residential subscribers and, similarly, that Jan-Pro was not obliged to register as a telephone solicitor before soliciting business on his number. Whether the district court mistakenly believed the Act provides for a separate and competing list of business subscribers, or merely that the appearance of one's residential telephone service number on a commercial listing of business numbers excludes him from the statutory definition of "residential subscriber" and the protections of the no-call list, it misconstrued the regulatory scheme and erred on both counts.

Believing, however, that it had adequately...