Opinion
No. C 02-4057 MJJ
March 3, 2003
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
INTRODUCTION
Before the Court are two motions to dismiss ("motions") a class action complaint filed by Redefining Progress ("Plaintiff"). The first motion, brought by Cox Business Services, LLC ("Cox") seeks to dismiss for lack of subject-matter jurisdiction, failure to state a claim, and primary jurisdiction of the Federal Communications Commission ("FCC"). The second, brought by Kevin Katz ("Katz") and American Benefit Mortgage, Inc. ("ABM"), seeks to dismiss solely based on lack of subject-matter jurisdiction. These motions require the Court to determine if federal jurisdiction exists under Section 207 of the Communications Act ("Section 207"), 47 U.S.C. § 207, where the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, is used as the basis for such jurisdiction. Having considered the briefing in this matter and listened to argument from the parties, the Court GRANTS Defendants' motions based on lack of subject-matter jurisdiction.
FACTUAL BACKGROUND
Plaintiff alleges that Fax.com, Inc. ("Fax.com") is the largest fax broadcaster in the United States. Class Action Complaint ("Complaint") ¶ 10. Defendant Katz is Fax.com's cofounder and president. Complaint ¶ 11. Plaintiff alleges that Defendant ABM is one of Fax.com's customers, for whom Fax.com broadcasts unsolicited advertisements to individuals and businesses such as Plaintiff listed on Fax.com's fax number database. Complaint ¶ 40.Plaintiff alleges that Defendants Fax.com, Katz, ABM, and Does 1 through 10,000 (collectively, "Fax.com Defendants") have violated and continue to violate the TCPA by fax broadcasting millions of unsolicited advertisements every day. Complaint ¶ 1, 20. Plaintiff alleges that Defendant Cox, a common carrier under the Communications Act, has both actual notice of and a high degree of involvement in the Fax.com Defendants' fax-spamming operation, and has caused or permitted these TCPA violations, rendering it liable under the TCPA and the Communications Act. See Complaint ¶¶ 12, 35-38, 75-79.
On August 22, 2002, Plaintiff filed a class action complaint against the Fax.com Defendants and Cox asserting the following claims: (1) violations of the TCPA (against all Defendants); (2) violations of Section 206 of the Communications Act ("Section 206"), 47 U.S.C. § 206 (against Cox only); (3) violations of California's Unfair Competition Law, Business Professions Code § 17200, et seq. (against all Defendants); (4) unjust enrichment (against Fax.com, Katz, and Cox); (5) violations of the Uniform Fraudulent Transfer Act, California Civil Code § 3439, et seq. (against Fax.com and Katz). See Complaint ¶ 66-96.
The Court will now consider motions to dismiss brought by Cox as well as Katz and ABM.
LEGAL STANDARD
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, "a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit." Friends of Frederick Seig Grove #94 v. Sonoma County Water Agency, 124 F. Supp.2d 1161, 1164 (N.D. Cal. 2000).
ANALYSIS
Plaintiff asserts federal causes of action based on the TCPA and Section 206, neither of which provide an independent basis for federal jurisdiction. See Murphey v. Lanier, 204 F.3d 911, 915 (9th Cir. 2000) ("state courts have exclusive jurisdiction over a cause of action created by . . . the [TCPA]") (quotations and citations omitted); ATT Communications of Cal, Inc. v. Pacific Bell, 60 F. Supp.2d 997, 1000 (N.D. Cal. 1999) ("there is no independent right of action provided by Section 206 itself"). Therefore, in order for this Court to have jurisdiction over any of Plaintiff's claims, there must be a basis for federal jurisdiction. The question here is whether Section 207 of the Communications Act ("Section 207") provides such a basis.A. General v. Specific Jurisdiction
The parties initially dispute whether Section 207 reflects a grant of "general" or "specific" jurisdiction. Defendant Cox argues that Section 207 is a general jurisdiction statute akin to 42 U.S.C. § 1331 because they both "require the violation of another statute before federal jurisdiction can be invoked." See Cox Reply to Plaintiffs Opposition ("Reply") at 2:15-16. The Court disagrees.
Under this theory, Plaintiffs additional claims would have to be dismissed for lack of subject-matter jurisdiction. See United Artists Theater Circuit, Inc. v. FCC, 147 F. Supp.2d 965, 972 (D. Ariz. 2000) ("[i]n the absence of an express jurisdictional grant to the federal courts in the statute, federal jurisdiction over private TCPA actions cannot alternatively be obtained under the general federal question jurisdiction statute"); see also Murphey, 204 F.3d at 915.
There are two key distinctions between 1331 and Section 207. First, unlike 1331, Section 207 makes reference to, and is part of, a larger federal statute, the Communications Act. Moreover, while 1331 requires a violation of another federal statute in order to be invoked, Section 207 is predicated upon a violation of the Communications Acts. See 42 U.S.C. § 207 ("[a]ny person claiming to be damaged by any common carrier subject to the provisions of this chapter may . . .") (emphasis added). In short, Section 207 is simply the jurisdictional provision of the Communications Act, which, taken as a whole, reflects a grant of specific jurisdiction. However, the distinction between general and specific jurisdiction is not determinative here.
B. Private Right of Action
As previously stated, the TCP A does not create a private right of action in federal court. Murphey, 204 F.3d at 915. Neither does Section 207; in order to state a claim under Section 207, a plaintiff must establish that another provision of the Communications Act has been violated. See Frenkel v. Western Union Telegraph Company, 327 F. Supp. 954, 958 (9th Cir. 1971). Plaintiff contends that a violation of the TCP A by a common carrier satisfies this requirement. In other words, Plaintiff argues that the TCP A, a provision of the Communications Act which clearly vests jurisdiction with state courts, is sufficient to invoke Section 207, the federal jurisdictional provision of the same Act. This theory does not withstand the traditional canons of statutory interpretation, nor does this represent sound logic.
Section 206 cannot provide the requisite violation to state a claim under Section 207. Frenkel, 327 F. Supp. at 958.
When reviewing a statute, the Court first looks to the statutory language itself. If the language is clear, there is no need to look any further to determine the meaning of the statute. Hellon Associates, Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). "Second, to the extent that statutes can be harmonized, they should be, but in case of an irreconcilable inconsistency between them the later and more specific statute usually controls the earlier and more general one [citations]." Id. Finally, it is presumed that new laws are passed with knowledge of previous legislation. Id.
Here, the two statutory provisions clearly conflict with regard to jurisdiction: Section 207 places jurisdiction solely in the federal arena, while the TCP A places jurisdiction exclusively with state courts. However, Plaintiff contends that the two provisions can be reconciled because "Section 207 does not depend on the nature of the underlying [Communications Act] violation to determine whether a federal court has jurisdiction." Opp. at 8:2-4. This fact, however, does not address the inherent conflict between the two provisions. Therefore, the rules of statutory interpretation require that the later and more specific statute, is controlling. There can no question that the TCPA was enacted long after the Communications Act. Moreover, TCPA's grant of jurisdiction is more specific than Section 207. See Carpenter v. Department of Transportation, 13 F.3d 313, 316 (9th Cir. 1994) ("[s]pecific grants of exclusive jurisdiction to the courts of appeals override general grants of jurisdiction to the district courts"). In other words, with the enactment of the TCPA, Congress carved out a specific exception to Section 207, the general jurisdictional provision of Communications Act. Thus, as a matter of statutory interpretation, the Court finds that the TCPA controls.
Moreover, if the Court were to employ Plaintiffs rationale, any claim under the TCPA, which named the common carrier as a defendant, could be heard in federal court. Plaintiff offers no evidence that Congress intended such a result when it, without exception, provided exclusive state court jurisdiction over TCPA claims.
There is almost a sixty-year gap between the enactment of the Communications Act (1934) and the TCPA (1991).
Although the Court need not reach the final rule of statutory interpretation — the presumption that new laws are passed with knowledge of previous laws — in this case it is likely that Congress was aware of Section 207 when it passed the TCPA. See Murphey, 204 F.3d at 915 (describing the TCPA's grant of exclusive state court jurisdiction as "unusual").
CONCLUSION
For the reasons stated above, Defendants' motions to dismiss are GRANTED based on lack of subject-matter jurisdiction.IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issued have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED
The Defendant's Motion to Dismiss is GRANTED.