Worsham v. Fairfield
| Decision Date | 30 September 2009 |
| Docket Number | No. 1058, September Term, 2007.,1058, September Term, 2007. |
| Citation | 188 Md. App. 42,981 A.2d 24 |
| Parties | Paul F. WORSHAM v. FAIRFIELD RESORTS, INC. |
| Court | Court of Special Appeals of Maryland |
Michael C. Worsham, Forest Hill, for Appellant.
Scott McIntosh, Washington, DC (John J. Dwyer, Reston, VA, DLA Piper US LLP on brief), for Appellee.
Panel: HOLLANDER, MEREDITH, and RAYMOND G. THIEME, JR. (Retired, specially assigned), JJ.
The question presented by this appeal is whether the applicable statute of limitations for a claim filed in Maryland pursuant to the federal Telephone Consumer Protection Act of 1991 ("TCPA") is four years—based upon the federal "catch all" limitation period set forth in 28 U.S.C. § 1658(a)—or three years—based upon the Maryland general civil limitation period set forth in Maryland Code (1974, 2006 Repl.Vol.), Courts and Judicial Proceedings Article ("CJP"), § 5-101. We conclude that the four year limitation period imposed by 28 U.S.C. § 1658(a) applies to the present action.
The appellant in this case is Paul Worsham. On February 26, 2007, Worsham filed a complaint in the Circuit Court for Montgomery County, alleging that he had received a telephone solicitor's call that violated the federal TCPA. Worsham alleged that a company using telemarketing to promote its services—Fairfield Resorts, Inc., appellee—had unlawfully called Worsham's residential telephone number on February 28, 2003, using automated dialing equipment. Worsham's complaint further alleged that the telemarketer delivered a prerecorded solicitation that failed to provide the true name of the individual caller and other required information. Worsham asserted that he did not give Fairfield his consent to receive such telephone calls.
The content of the prerecorded message was:
Page with the Fairfield Resorts in Alexandria, Virginia. We're inviting people in your area to the open house of our luxurious resort, and just for taking a short 90 minute tour, you'll receive a certificate good for four hotel getaways, including dinner, and spending money. For more details, call our representatives at 1-800-249-0214, and please mention offer 300. Thanks.
Worsham's complaint alleged that the call violated the provision of the TCPA set forth in 47 U.S.C. § 227(b)(1)(B), prohibiting, in Worsham's words, the initiation of "any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." Further, Worsham alleged that the message violated 47 C.F.R. § 64.1200(e)(2)(iv) by failing to provide the name of the individual caller, the name of the person on whose behalf the call was being made, and the telephone number or address at which the responsible party could be contacted. Pursuant to 47 U.S.C. § 227(b)(3), Worsham claimed damages of $500 for each violation of the TCPA, which he asked to be trebled because the violations were committed willfully or knowingly. Worsham also sought:
[a]n injunction prohibiting the Defendants ... from initiating telephone calls to any residential line using a prerecorded voice to deliver a message without the prior express invitation, permission or consent of the called party, or without providing the name of the individual caller, the name of the person on whose behalf the call is being made, and/or a telephone number or address at which the person or entity may be contacted.
Fairfield filed a motion to dismiss the complaint pursuant to Maryland Rule 2-322(b)(2). Fairfield asserted that all claims were barred by the three-year statute of limitations set forth in CJP § 5-101. Fairfield also asserted that the TCPA provided no private cause of action for the alleged violation of 47 C.F.R. § 64.1200(e)(2)(iv) because that regulation was promulgated pursuant to 47 U.S.C. § 227(d), and that section of the TCPA does not provide for a private cause of action to redress violations. Cf. Worsham v. Ehrlich, 181 Md.App. 711, 729, 957 A.2d 161 (2008) ().
Worsham responded and argued that the suit was timely filed, asserting:
The statute of limitations for violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 is governed by the four year limitations period established by 28 U.S.C. § 1658. Unless specified otherwise, when a cause of action is created by a federal statute enacted after December 1, 1990, the limitations period is four years. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004).
After a hearing, the circuit court granted Fairfield's motion to dismiss the claims against it with prejudice "on the grounds that such claims are barred by the statute of limitations." This appeal followed.1
Because the sole basis upon which the circuit court dismissed Worsham's claims was the application of the Maryland statute of limitations, we shall limit our discussion to whether the court correctly determined that the four-year statute of limitations established by 28 U.S.C. § 1658(a) is not applicable to private actions filed pursuant to 47 U.S.C. § 227(b)(3). The most pertinent provisions of the TCPA are 47 U.S.C. § 227(b)(1)(B), prohibiting calls to a residential telephone line by use of any prerecorded voice, and 47 U.S.C. § 227(b)(3), providing for a private cause of action for a violation of 47 U.S.C. § 227(b).
The first, 47 U.S.C. § 227(b)(1)(B), states:
47 U.S.C. § 227. Restrictions on use of telephone equipment.
* * *
(b) Restrictions on use of automated telephone equipment.
(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—
* * *
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph(2)(B); .... [2]
The second pertinent provision, 47 U.S.C. § 227(b)(3), states:
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
Accordingly, the TCPA prohibits the commercial use of prerecorded telephone messages in calls placed to residential telephone lines, subject to certain exemptions. Further, the TCPA provides for pursuit of a private cause of action in State court seeking an injunction or damages or both.
At first blush, Congress's statutory scheme of creating a private cause of action for violation of a federal law, but requiring that such private cause of action be pursued only in state courts, seems like an oddity. But, as Judge John C. Eldridge explained, writing for the Court of Appeals in Levitt v. Fax.com, Inc., 383 Md. 141, 857 A.2d 1089 (2004)—a case involving the TCPA's prohibition on sending unsolicited advertisements via fax—the concept is not new even though it may have fallen into disuse in recent times. Noting that "the United States Constitution established only one federal court, the Supreme Court of the United States, and [that] its jurisdiction is almost entirely appellate," id. at 148, 857 A.2d 1089, Judge Eldridge observed: "If Congress had chosen the constitutional option of not creating federal trial courts, jurisdiction over virtually all federal causes of action would have been exclusively in state trial courts." Id. at 148-49, 857 A.2d 1089. And, "even though Congress did choose to create federal trial courts, it did not vest them with general federal question jurisdiction until 1875." Id. at 149, 857 A.2d 1089.
In R.A. Ponte Architects, Ltd. v. Investors' Alert, 382 Md. 689, 857 A.2d 1 (2004), the Court of Appeals reviewed a claim based upon the TCPA and confirmed that a private cause of action seeking damages pursuant to 47 U.S.C. § 227(b)(3) could be prosecuted in the courts of this State. The Court of Appeals stated: "The issue in this case concerns the Congressional intent underlying the phrase `if otherwise permitted by the laws or rules of court of a State,' along with the relationship between the language of the federal statute and state law." Id. at 703, 857 A.2d 1. Reviewing the legislative history of the TCPA, the Court of Appeals stated, id. at 707, 857 A.2d 1:
Congress enacted the Telephone Consumer Protection Act in November 1991, and it was signed into law in December of that year. The purpose of the Act was to address telemarketing practices that were made possible by technological changes that resulted, inter alia, in a substantial increase in unsolicited commercial telephone calls and faxes, and the resulting expense and disruption imposed on the recipients. At that point in time, some states had begun to take action to restrict such telemarketing practices.... State laws, however, had limited effect because states did not have jurisdiction over interstate calls. The federal law was primarily intended to reach unsolicited facsimile and other telephone communications that crossed state lines, and fell outside the jurisdiction of the states.
The scant legislative history relative to the private cause of...
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