Stopping Telemarketers (Continued from page 13)


The FCC applies this established defi-


nition of ‘willful’ in the FCC’s own TCPA enforcement actions for unsolicited faxes: “A party need not have known that it was acting unlawfully to support a finding of willfulness under section 503(b) of the Act. That section requires only a show- ing that the party knew it was doing the acts in question. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).”37 Inconsistent application and interpre- tation of the law would result if courts were to apply interpretations of statutory terms different from the interpretations of the agencies whose job it is to interpret and enforce the statute.38


As the admin-


istrative agency charged with administering the TCPA, the FCC’s defi- nition is entitled to great deference from a court where that definition is not clearly at odds with the intent of Congress.39


“willful,” as the term is used in other Maryland criminal statutes.”41


The court


then held that for either criminal pros- ecution or civil liability under the Maryland wiretap law, “willful” means intentionally or purposefully, and only excludes inadvertent acts or simple negli- gence. The required mental state is simply “purposeful conduct, requiring neither a bad motive nor knowing unlawfulness.”42 The bottom line for Maryland practi- tioners is that it should be straightforward to prove a defendant’s TCPA violations were “willful” under both federal and state law. However, even if the TCPA viola- tions are proven to be willful or knowing, the award of any additional damages is still in the discretion of the court. In a jury trial, the “court” in the context of determining discretionary damages would be the trier of fact, i.e., the jury.43


Treble


damages means a potential recovery of $1,500 per violation under the TCPA.


The


Maryland Court of Special Appeals rec- ognizes this principle:


“Accordingly, in


an effort to seek consistency, we shall give substantial weight to persuasive interpre- tations of the TCPA by both the FCC and our sister states.”40 The Maryland Court of Appeals re- cently adopted this same interpretation of “willful.” In Deibler v. State, 365 Md. 185 (2001), the court conducted an extensive look at the term ‘willful’ in several state and federal law contexts. Summarizing its findings, the court said that “As we indicated, this moderate conception of the required mental state - purposeful con- duct, requiring neither a bad motive nor knowing unlawfulness - comports, for the most part, with how we have defined


37


See In the Matter of Get-Aways, Inc., 1999 WL 1144918 (F.C.C.), ¶ 11 (Dec. 15, 1999).


38


U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 812 (1995) (“Federal laws ‘should be the same everywhere’ and ‘their construction should be uniform.’”) (citing Murdock v. City of Memphis, 87 U.S. 590, 632 (1874)).


39


Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 844 (1984): “The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the read- ing the court would have reached if the ques- tion initially had arisen in a judicial proceed- ing.” Chevron, 467 U.S. at 843, n. 11.


40


Worsham v. Nationwide, 138 Md. at 497 (2001).


14 43


Class Actions Under The TCPA The TCPA is silent regarding class ac- tions lawsuits, but class action relief is unavailable only if Congress expressly ex- cludes it.44


In addition to the decisions


(cited supra) holding that TCPA private actions must be brought in state court, since the U.S. Supreme Court has held that small claims can not be aggregated to meet the jurisdictional amount for a diversity action,45


and most individual


TCPA claims will be well below the $75,000 threshold for diversity actions, any TCPA class actions must be brought in state court. For class action suits filed in Maryland


Circuit Courts, “the separate claims of the proposed members of the class may be aggregated to meet the minimum amount in controversy required.”46


This can be


41Deibler v. State, 365 Md. at 199 (2001). 42


important, since an individual TCPA claim for a junk fax or prerecorded call can often be under $2,500. There have been several certifications


of TCPA junk fax class actions, although none yet in Maryland. The lead case is Hooters of Augusta, Inc. v. Nicholson, 245 Ga. App. 363; 537 S.E.2d 468 (2000). The class certification in Hooters contrasts with another earlier decision denying cer- tification by finding the issue of whether the faxes were unsolicited was not a ques- tion common to the class, and was dependent to each individual fax.47


ever, the Forman case is anomaly not only for its reasoning in denying class certifi- cation, but also for being tried in a federal court which lacks jurisdiction over TCPA claims.


The issue raised in Forman is avoided


by pleading and defining the class care- fully as persons who received unsolicited faxes, doing the appropriate discovery early in the case or pre-suit, and moving for certification at the appropriate point. Since most fax advertisements (like those in Hooters) and prerecorded solicitations are delivered by automated machines or computers and were not expressly solic- ited by the recipients, the issue of whether a fax or call was unsolicited is not really a defense most defendants can legitimately raise for most or all of the class. Also, the factual determination of prior permission is simple, and is dominated by other ques- tions of law or fact common to the members of the class.


Recent TCPA Developments In March 2002 a federal district court judge in Missouri ruled that the junk fax provisions of the TCPA violate the First Amendment.48


The decision held that the


Id. at 199. See also Suburban Hospital, Inc. v. Maryland Health Resources Planning Com- mission, 125 Md. App. 579, 596 (1999) (“we conclude that “willfully” as used in S.G. § 10-510 does not require knowledge that the meeting actually violates the Open Meetings, but instead refers to intentional conduct.”).


Admiral Mortgage v. Cooper, 357 Md. 533, 553 (2000) (“the discretionary additional damages is for the trier of fact to deter- mine.”).


44


Califano v. Yamsaki, 442 U.S. 682, 699-700 (1979).


45Snyder v. Harris, 394 U.S. 332 (1969). 46


Trial Reporter


Md. Code Ann., Cts. & Jud. Proc. Art., § 4- 402(d)(1)(ii) (1998).


government failed to satisfy the eviden- tiary burden test for restricting commercial speech established by the Su- preme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). The Missouri decision is on appeal, and


has already rejected several times by state and federal courts. Most recently, in the


(Continued on page 16)


How-


47 48


Forman v. Data Transfer, 164 F.R.D. 400, 403 (E.D. Pa. 1995).


State of Missouri, ex rel. Jeremiah W. (Jay) Nixon v. American Blast Fax, Inc. et al., 196 F. Supp. 2d 920 (E.D. Mo., March 13, 2002) (“Missouri”).


Winter 2003


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