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Zelma v. Market U.S.A.

August 02, 2001

SHANNON ZELMA, PLAINTIFF-APPELLANT
v.
MARKET U.S.A., DEFENDANT-RESPONDENT AND MBNA AMERICA, N.A., DEFENDANT
SHANNON ZELMA, PLAINTIFF-APPELLANT
v.
PROVIDIAN BANCORP, INC., TELESPECTRUM WORLDWIDE, INC. AND TELEMARK, INC., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, DC-6060- 99 & DC-7210-99.

Before Judges Wefing, Cuff and Lisa.

The opinion of the court was delivered by: Cuff, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 13, 2001

In these appeals*fn1, we must consider whether New Jersey courts have subject-matter jurisdiction over claims arising under the Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227, by virtue of the general jurisdiction granted by the New Jersey Constitution or whether jurisdiction depends on the adoption of a statute or rule specifically permitting such actions in the courts of this State. In each case, the motion judge dismissed the complaints for lack of subject-matter jurisdiction on the basis that this State had not affirmatively adopted a statute or court rule to allow such actions. We reverse.

Shannon Zelma, the plaintiff, characterizes himself as a member "of a nationwide citizen watchdog group called Private Citizen which was formed to combat telemarketing abuse." In May 1999, in the appeal denominated A-1667-99T1, plaintiff filed a Law Division action against MBNA America, N.A. (MBNA), a Delaware credit card company, and Market U.S.A. (Market), an Illinois telemarketer. Plaintiff alleged that MBNA and Market caused him to receive unwanted telephone solicitations on five dates in 1997 contrary to his request when he applied for a credit card. Plaintiff claimed that each defendant violated five provisions of the regulations promulgated under the TCPA. The ten count complaint asserted five identical counts against each defendant and demanded an injunction, statutory damages of $500 for each violation, and treble damages.

In A-2898-99T5, plaintiff filed a complaint in May 1999 in the Special Civil Part alleging that defendant Telemark, an Oregon corporation, had called plaintiff twice in May and July 1997 to make a telephone solicitation on behalf of defendant Providian Bancorp, Inc. (Providian). During the May 1997 call, plaintiff requested that he be placed on a "do-not-call" list. Despite the request, he was contacted again on July 28, 1997, by Telemark or defendant Telespectrum Worldwide, Inc. (Telespectrum). Plaintiff claimed each defendant violated five provisions of the TCPA regulations and for each violation plaintiff sought an injunction, $500 statutory damages and treble damages.

In response to MBNA's motion for summary judgment, the motion judge ruled that plaintiff was barred from pursuing his claims in state court absent express consent by the Legislature or court rule. On October 26, 1999, an order was entered dismissing the complaint for lack of subject-matter jurisdiction.

In the Providian matter, A-2898-99T5, plaintiff moved to stay the action pending resolution of his appeal in the MBNA action. The stay was denied and the same judge granted Telemark's motion to dismiss for lack of subject-matter jurisdiction.*fn2 Once again, the judge ruled that the action was barred until the Legislature or the Supreme Court affirmatively authorized such actions.

Enacted in 1991, the TCPA was intended to protect residential telephone customers from unwanted solicitations by means of personal telephone calls or automated-dialing or prerecorded voice systems. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513, 514 (3d Cir. 1998). Though many states had laws regulating telemarketers,*fn3 Congress perceived a need for a federal law in view of the interstate character of many telemarketing operations. Ibid.; Szefczek v. Hillsborough Beacon, 286 N.J. Super. 247, 263 (Law Div. 1995).

As one federal court has explained:

Congress enacted the TCPA as a supplement to state efforts to regulate telemarketing activities. This nonconsensual telemarketing activity was viewed by Congress as an invasion of privacy, an impediment to interstate commerce, and a disruption to essential public safety services. S.REP. No. 178, 102nd Cong., 1st Sess. 1, 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1973. Congressional action was needed as states had no independent regulatory power over interstate telemarketing activities. Id., 47 U.S.C. § 227, Congressional Finding No. 7. By creating a private right of action in state courts, Congress allowed states, in effect, to enforce regulation of interstate telemarketing activity. [Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 513 (5th Cir. 1997).]

The TCPA authorized the Federal Communications Commission (FCC) to adopt regulations defining the prohibited conduct and setting forth procedures for enforcement. 47 U.S.C.A. § 227(b)(2) and (c)(2). Those regulations are codified at 47 C.F.R. § 64.1200 (2001). In his complaint plaintiff cited various subsections of those regulations that allegedly were violated by defendants' conduct. The TCPA establishes two categories of restrictions–the use of automated telephone equipment, 47 U.S.C.A. § 227(b), and consumers' "privacy rights." 47 U.S.C.A. § 227(c).

Plaintiff grounds both actions on the fact that telemarketers spoke to him in spite of his presence on "do-not-call" lists. The TCPA contemplates three mechanisms of enforcement of the privacy protections. First, a state may sue on behalf of its aggrieved residents; federal courts have exclusive jurisdiction over such actions. 47 U.S.C.A. ยง 227(f)(1) and (2). Second, the FCC may institute its own federal action or join in one filed by a state. 47 U.S.C.A. ...


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