Katherine R. Dupuis, J.s.c.
The opinion of the court was delivered by: Dupuis
This case came before the court for trial on January 23, 1995.
The court finds the following facts:
After receiving several live telemarketing calls from the defendant, plaintiff telephoned its parent company, The Princeton Packet, on May 19, 1993, to request that the calls cease. She spoke with Mr. Martin Hilson, General Sales Manager. Plaintiff explained to Mr. Hilson at that time that her husband was terminally ill, requiring constant care, and that she did not wish to be disturbed by telemarketing phone calls. Mr. Hilson took her name, address, and telephone number and assured her that he would personally see that the calls to her home were discontinued.
On August 5, 1993, plaintiff was again telephoned by the defendant. She phoned Mr. Hilson, who was not in his office, and left a message with his secretary that the calls had not stopped. She again requested that he put an end to them. Mr. Hilson did not return her call.
On November 9, 1993, plaintiff received another call from defendant, whereupon she again telephoned Mr. Hilson. Once again he was not in his office. She left another message with his secretary, but again her call was not returned.
Three months later, on February 15, 1994, defendant called plaintiff again. With the operator's permission, she tape recorded the call. Plaintiff explained her problem to the operator, who promised to remove her name from his list. He told her, however, that her name was probably still in the company's computer.
After the February, 1994, call, plaintiff was finally able to reach Mr. Hilson again. She reminded him of the reasons why she had requested that defendant stop telemarketing her home, and she told him that her previous efforts to stop the calls had been unsuccessful. She also said that she was considering a lawsuit. Mr. Hilson asked her for another chance and again said that he would handle the problem personally.
Approximately three weeks later, on March 7, 1994, plaintiff received another telemarketing call from defendant. Plaintiff again tape recorded the conversation. Plaintiff explained the situation once more to the operator, who said that she would take plaintiff's number off her list and make a notation of "Customer Irate." The operator also told plaintiff, however, that her name was probably still in the computer.
The next day, on March 8, 1994, the very same operator called plaintiff again. Plaintiff tape recorded the call, said she was not interested in the product, and hung up.
Plaintiff brought suit in the Small Claims Division based upon the Telephone Consumer Protection Act of 1991, Public Law 102-243, December 20, 1991, which amended Title II of the Communications Act of 1934, 47 U.S.C. § 201 to § 228 by adding a new section, 47 U.S.C. § 227 (TCPA) or the statute).
The court originally heard the case on July 29, 1994. The court found that the statute was inapplicable to the facts of this case, and dismissed plaintiff's claim. Since the statute did not apply on its face, the court found it unnecessary to address the argument raised by defendant that the statute was unconstitutional.
On August 5, 1994, plaintiff filed a motion for reconsideration. Upon reconsideration, the court determined that plaintiff did in fact state a cause of action based upon the FCC regulations enacted under section (c)(2) of the statute, for the protection of residential telephone subscribers' rights. The court entered judgment in favor of plaintiff in the amount of $1,500, and enjoined the defendant from further soliciting plaintiff.
On September 26, 1994, defendant filed a motion for a new trial, which the court granted on October 14, 1994. Trial was set for January 23, 1995.
On the day of trial, the court entertained argument on the United States' motion to intervene as a plaintiff in this matter for the purpose of defending the constitutionality of the TCPA, previously challenged by defendant. The court granted the United States' motion, finding that intervention was proper under New Jersey Court Rule 4:33-1, Intervention as of Right, and alternatively under Rule 4:33-2, Permissive Intervention.
CONSTITUTIONALITY OF THE TELEPHONE CONSUMER PROTECTION ACT
The court will first address defendant's argument that the TCPA is an unconstitutional restriction on commercial speech, in violation of the First Amendment as applied to the states through the 14th Amendment. Defendant bases its argument on the Oregon district court decision in Moser v. FCC, 826 F. Supp. 360 (D. Or. 1993). This court notes that Moser is the only federal court to have considered the constitutionality of the statute thus far. Moser held that the TCPA, by prohibiting the use of artificial or prerecorded voice to deliver commercial messages to residential telephones without the consent of the party being called, placed an unconstitutional restriction upon protected commercial speech.
First, this court notes that the appellate court reversed the Moser decision February 6, 1995. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995).
Secondly, those decisions are in no way binding on this court.
Since the Moser decision was reversed only days ago, and since another appeal will likely follow, this court will address the defendant's arguments regarding that decision.
The precise section being challenged in Moser was subsection (b), entitled "Restrictions on the use of automated telephone equipment." Section (b)(1) is entitled "Prohibitions; section (b)(2) provides for "Regulations; exemptions and other provisions." Section (b)(1) provides:
It shall be unlawful for any person 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 Commission under paragraph (2)(B).
The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission
(B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe
(i) calls that are not made for a commercial purpose.
The district court in Moser found that the TCPA was an impermissibly content-based regulation, that is, it drew a distinction between messages on the basis of their content (commercial v. noncommercial). The Act prohibits commercial messages, subject to certain exceptions, but allows the Commission to completely exempt from the regulations calls made for noncommercial purposes. Furthermore, the court found that the TCPA could not be categorized as a legitimate time, place or manner restriction, as it also drew an impermissible distinction between the manner in which speech is delivered (recorded v. live).
Defendant argues that the Moser decision applies not only to subsection (b), but to the entire Act. As a result, it claims the whole statute should fall.
The facts of this case differ from Moser in that here the telemarketing calls which were made to plaintiff were accomplished through the use of live operators. As such, the language of subsection (b) of the TCPA, addressing only automated telephone equipment, is not implicated. This court finds that plaintiff's cause of action arises under subsection (c), and subsection (b) is therefore irrelevant. As such, the reasoning of Moser does not apply.
With regard to the defendant's argument that a finding of unconstitutionality with respect to one part of the statute renders the entire statute invalid, this court notes that only one year after the Moser decision, in Destination Ventures, Ltd. v. FCC, 844 F. Supp. 632 (D. Or. 1994), the same court upheld part (b)(1)(C) of the statute, prohibiting the use of any telephone fax machine, computer or other device to send unsolicited advertisements to another fax machine.
It is significant, in light of defendant's argument that the district court's Moser decision applies to the entire TCPA, that the very same court only one year later upheld part (1)(C) of the same subsection. The Destination Ventures opinion specifically addressed Moser.
Plaintiffs attempt an analogy to [§ 227(b)(2)(B)(i)]....By using the phrase "commercial purpose" in that portion of the statute, Congress intended to exclude calls made by non-profit organizations. ...