Omnibus Intern., Inc. v. At & T, Inc.
| Decision Date | 31 July 2003 |
| Docket Number | No. 05-01-01039-CV.,05-01-01039-CV. |
| Citation | 111 S.W.3d 818 |
| Parties | OMNIBUS INTERNATIONAL, INC., Appellant, v. AT & T, INC., Cellular Plus +, Inc., and Fax Works, Appellees. |
| Court | Texas Court of Appeals |
L.L.P.; Robert C. Wendland, Sewell & Anderson, L.L.P.; Ira E. Tobolowsky, Tobolowsky & Associates, P.C.; William C. Odeneal, Odeneal & Odeneal, Dallas, for appellees.
Before Justices JAMES and FRANCES MALONEY.1
OPINION ON MOTION FOR REHEARING
Opinion by Justice FRANCES MALONEY (Assigned).
We grant appellant's motion for rehearing and withdraw our opinion of November 21, 2002. This is now the opinion of the Court. Omnibus International, Inc. sued AT & T, Inc., Cellular Plus +, Inc., and Fax Works (collectively AT & T). Omnibus alleged that it and other Texans received thousands of facsimile advertisements, sent without permission, which violated section 35.47 of the Texas Business and Commerce Code (the State Code) and the Telephone Consumer Protection Act (the TCPA) and constituted trespass to chattels.2 Omnibus also requested damages between $500 and $1500 for each received facsimile advertisement. The trial court granted AT & T's motion for summary judgment. In five issues, Omnibus argues the trial court erred in granting summary judgment because AT & T did not establish as a matter of law it was entitled to judgment. We affirm in part and reverse and remand in part.
Between January 11, 2000 and April 17, 2000, AT & T sent seven to eight facsimiles to Omnibus without prior consent or invitation.3 AT & T moved for summary judgment, alleging the facsimiles at issue complied with the State Code's section 35.47 and the TCPA applies only to interstate facsimiles and does not apply to intrastate facsimiles, an award of $500 per infraction is unconstitutional because it is grossly disproportionate to actual damages, and Texas law does not recognize a cause of action for trespass to chattels. The trial court granted AT & T's motion in its entirety.
We review summary judgments under well-established standards—the movant must show there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law; in deciding whether a disputed material fact issue exists that precludes summary judgment, we must take evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant is entitled to summary judgment if the summary judgment evidence shows, as a matter of law, that the plaintiff cannot establish at least one element of his cause of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied).
In its second issue, Omnibus contends the trial court should not have granted summary judgment because AT & T did not establish that the TCPA applies only to interstate facsimile advertisements. Omnibus argues that federal principles of statutory construction dictate that the TCPA applies to intrastate calls because the plain language, legislative history, and the Federal Communication Commission's (FCC) interpretation support such a finding. We agree.
In construing federal statutes, federal law mandates that we first look to the statute's language to determine if the language at issue has a "plain and unambiguous meaning." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must interpret a statute as a "symmetrical and coherent regulatory scheme" and, if possible, fit all parts into a "harmonious whole." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citations omitted). When the statutory language is unclear, we turn to the legislative history. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (). We give deference to an agency's reasonable interpretation of an ambiguous federal act if the agency is responsible for implementing that federal act. United States v. Mead Corp., 533 U.S. 218, 227-28, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). The degree of deference a court owes is not at issue when the agency's interpretation is reasonable and consistent with the court's independent interpretation of the statute. See Edelman v. Lynchburg Coll., 535 U.S. 106, 122 S.Ct. 1145, 1150, 152 L.Ed.2d 188 (2002).
In 1991, Congress passed the TCPA to regulate unsolicited telephone calls and facsimiles. Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (). The TCPA amended the Communications Act of 1934. See 47 U.S.C. § 201 et seq. Although the Communications Act contains an interstate-only restriction, the TCPA itself contains a conforming amendment that expressly excepts the TCPA from the Communications Act's interstate-only restriction. 47 U.S.C. § 152(b) (1994); Texas v. Am. Blastfax, Inc., 121 F.Supp.2d 1085, 1088 (W.D.Tex.2000); Hilary B. Miller & Robert R. Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, 52 Fed. Comm. L.J. 667, 674 (2000).
The TCPA provides, "It shall be unlawful for any person within the United States to use 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); Murphey v. Lanier, 204 F.3d 911, 912 (9th Cir.2000). The statute defines the term "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." 47 U.S.C. § 227(a)(4). Telephone lines, even when used intrastate, are part of an aggregate interstate system and are instrumentalities of interstate commerce. United States v. Weathers, 169 F.3d 336, 341 (6th Cir.1999). Because Congress may regulate the instrumentalities of interstate commerce, Congress may regulate purely intrastate telephone activity to protect interstate commerce. United States v. Gilbert, 181 F.3d 152, 157-58 (1st Cir.1999); Am. Blastfax, 121 F.Supp.2d at 1087.
The TCPA does not specifically provide that it covers both interstate and intrastate activities. But, in expressly excepting the TCPA from the Communication Act's interstate-only restriction, the conforming amendment shows congressional intent that the TCPA apply to intrastate facsimiles. Am. Blastfax, 121 F.Supp.2d at 1088; Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468, 471 (2000) ().
The legislative history supports the TCPA's application to both interstate and intrastate communications. Congressman Edward Markey, the sponsor of the House version of the TCPA, stated on the floor: "The legislation, which covers both intrastate and interstate unsolicited calls, will establish [f]ederal guidelines that will fill the regulatory gap due to differences in [f]ederal and [s]tate telemarketing regulations." 137 Cong. Rec. E793 (Mar. 6, 1991) (statement of Rep. Markey) (emphasis added); see also Am. Blastfax, 121 F.Supp.2d at 1088 n. 2 (quoting same).
Because the Communication Act charges the FCC with promulgating rules and administering the TCPA, we defer to the FCC's interpretations of the Communications Act. See 47 U.S.C. § 227(c)(1). In a 1993 public notice entitled Telephone Solicitations, Autodialed and Artificial or Prerecorded Voice Message Telephone Calls, and the Use of Facsimile Machines, the FCC answered the question whether the TCPA applies to intrastate calls and facsimiles. In this public notice, the FCC explicitly stated, Consumer Alert, 8 F.C.C.R. 480 (January 11, 1993).
Thus, in construing the federal statute itself, we conclude that the plain language, legislative history, and administrative interpretation indicate that Congress intended the TCPA to apply to both interstate and intrastate facsimile advertisements.
Construing the federal statute alone, however, does not fully resolve the question. Omnibus brings the claim under the state statute that permits a private right of action4 in state court for the TCPA violations. Tex. Bus. & Com.Code Ann. § 35.47(g).5 AT & T contends that to render effective all of the provisions of section 35.47, we must necessarily construe a TCPA claim under subsection (g) as reaching only interstate claims. Otherwise, they argue, the TCPA's blanket prohibition of all unsolicited facsimiles would swallow up the legislature's intended regulation of intrastate facsimiles through the other provisions of section 35.47.
Our primary goal in interpreting a state statute is to ascertain and effectuate the legislature's intent. In re Canales, 52 S.W.3d 698, 701 (Tex.2001). We must give effect to every part of a statute if reasonably possible; we may not adopt a construction that will render any part of the statute inoperative, superfluous, or without legal effect. Tex. Prop. & Cas. Ins. Guar. Ass'n v. Johnson, 4 S.W.3d 328, 333 n. 5 (Tex.App.-Austin 1999, pet. denied).
States have no independent regulatory power over...
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