Opinion
No. 05-01-01039-CV
November 21, 2002
On Appeal from the 101st District Court, Dallas County, Texas, Trial Court Cause No. 00-04724-E
OPINION
Omnibus International, Inc. (Omnibus) sued ATT, Inc., Cellular Plus+, Inc., and Fax Works (collectively ATT). Omnibus alleged that it and other Texans received thousands of facsimile advertisements, sent without permission, which violated section 35.47 of the Texas Business and Commerce Code (the Code) and the Telephone Consumer Protection Act (TCPA) and constituted trespass to chattels. Omnibus also requested a minimum of $500 and maximum of $1500 in damages for each received facsimile advertisement. The trial court granted ATT's motion for summary judgment. In five issues, Omnibus argues the trial court erred in granting summary judgment because ATT did not establish as a matter of law it was entitled to judgment. We affirm in part and reverse and remand in part.
Omnibus sought and was denied class certification in its original petition. The trial court's denial of class certification is not an issue in this appeal.
BACKGROUND
Between January 11, 2000 and April 17, 2000, ATT sent seven to eight facsimiles to Omnibus without prior consent or invitation. ATT moved for summary judgment, alleging the facsimiles at issue complied with the Code's section 35.47, the TCPA applies only to interstate facsimiles and does not apply to intrastate facsimiles, an award of $500 per infraction is unconstitutional because it is grossly disproportionate to actual damages, and Texas law does not recognize a cause of action for trespass to chattels. The trial court granted ATT's motion in its entirety.
It is undisputed ATT sent the facsimile advertisements at issue. In its brief, ATT states that this Court "may assume arguendo that all of the appellees sent these facsimiles or caused them to be sent."
SUMMARY JUDGMENT
We review summary judgments under well-established standards-the movant must show there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law; in deciding whether a disputed material fact issue exists that precludes summary judgment, we must take evidence favorable to the nonmovant as true; and we must indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant is entitled to summary judgment if the summary judgment evidence shows, as a matter of law, that plaintiff cannot establish at least one element of his cause of action. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied).
THE CODE
In its first issue, Omnibus contends material fact issues exist on whether ATT complied with section 35.47 of the Code.
1. Applicable Law
Section 35.47 of the Code states as follows:
A person may not make or cause to be made a transmission for the purpose of a solicitation or sale to a facsimile recording device or other telecopier for which the person or entity receiving the transmission will be charged for the transmission, unless the person or entity receiving the transmission has given, prior to the transmission, consent to make or cause to be made the transmission.
Tex. Bus. Com. Code Ann. § 35.47(b) (Vernon 2002). In 1999, the legislature amended section 35.47 adding, among other things, a new subsection (d). Act of June 18, 1999, 76th Leg., R.S., ch. 635, § 1, 1999 Tex. Gen. Laws 3203, 3203 (effective September 1, 1999). This new subsection required the sender of a facsimile solicitation to provide a telephone number for the recipient to notify the sender not to send any further facsimiles.
In 2001, the legislature amended section 35.47 to delete subsection (d), effective January 1, 2002. Act of June 17, 2001, 77th Leg., R.S., ch. 1429, § 2, 2001 Tex. Gen. Laws 5108, 5108. Thus, the law required a facsimile sender provide a telephone number only from September 1, 1999 to January 1, 2002.
2. Application of Law to Facts
Five of the facsimile advertisements at issue do not meet the requirements of subsection (d) because they do not contain complete telephone numbers for the receiver to contact the sender to discontinue the ads. Because all of the facsimiles did not comply with subsection (d), ATT did not show as a matter of law that it complied with the statute's requirements. We resolve issue one for Omnibus.
TCPA
In its second issue, Omnibus contends the trial court should not have granted summary judgment because ATT did not establish the TCPA applies only to interstate facsimile advertisements. Omnibus argues the TCPA applies to intrastate calls because the plain language, legislative history, and the Federal Communication Commission's (FCC) interpretation supports such a finding. We agree.
1. Statutory Construction
In construing federal statutes, we first look to the statute's language to determine if the language at issue has a "plain and unambiguous meaning." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). We must interpret a statute as a "symmetrical and coherent regulatory scheme" and, if possible, fit all parts into a "harmonious whole." FDA v. Brown Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (citations omitted). When the statutory language is unclear, we turn to the legislative history. Blum v. Stenson, 465 U.S. 886, 896 (1984) (using Senate report as guidance). We give deference to an agency's reasonable interpretation of an ambiguous federal act if the agency is responsible for implementing that federal act. United States v. Mead Corp., 533 U.S. 218, 227-28 (2001). The degree of deference a court owes is not at issue when the agency's interpretation is reasonable and consistent with the court's independent interpretation of the statute. See Edelman v. Lynchburg Coll., 535 U.S. 106, 122 S.Ct. 1145, 1150 (2002).
2. Applicable Law
In 1991, Congress passed the TCPA to regulate unsolicited telephone calls and facsimiles. Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at 47 U.S.C. § 227 and various other sections). The TCPA amended the Communications Act of 1934 (the Act). See 47 U.S.C. § 201 et seq. Although the Act contains an interstate-only restriction, the TCPA itself contains a conforming amendment that expressly excepts the TCPA from the Act's interstate-only restriction. 47 U.S.C. § 152(b) (1994); Texas v. Am. Blastfax, Inc., 121 F. Supp.2d 1085, 1088 (W.D.Tex. 2000); Hilary B. Miller Robert R. Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, 52 Fed. Comm. L.J. 667, 674 (2000).
The TCPA provides, "It shall be unlawful for any person within the United States to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." 47 U.S.C. § 227(b)(1)(C); Murphey v. Lanier, 204 F.3d 911, 912 (9th Cir. 2000). The statute defines the term "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." 47 U.S.C. § 227(a)(4). Telephones and telephone lines are part of an aggregate interstate system and are instrumentalities of interstate commerce. W. Union Tel. Co. v. Lenroot, 323 U.S. 490, 502 (1945); United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999).
3. Application of Law to Facts a. Plain Language
The TCPA does not specifically provide that it covers both interstate and intrastate activities. By expressly excepting the TCPA from the Act's interstate-only restriction, the conforming amendment shows congressional intent that the TCPA apply to intrastate facsimiles. Am. Blastfax, 121 F. Supp.2d at 1088; Hooters of Augusta, Inc. v. Nicholson, 537 S.E.2d 468, 471 (Ga.Ct.App. 2000) (holding Congress expressed its intent to regulate both interstate and intrastate communications by excepting TCPA from interstate limitation of 47 U.S.C. § 152). The TCPA does not preempt state law that imposes more restrictive intrastate requirements. 47 U.S.C. § 227(e).
b. Legislative History
The legislative history supports the TCPA's application to both interstate and intrastate communications. Congressman Edward Markey, the sponsor of the House version of the TCPA, stated on the floor: "The legislation, which covers both intrastate and interstate unsolicited calls, will establish [f]ederal guidelines that will fill the regulatory gap due to differences in [f]ederal and [s]tate telemarketing regulations." 137 Cong. Rec. E793 (Mar. 6, 1991) (statement of Rep. Markey) (emphasis added); see also Am. Blastfax, 121 F. Supp.2d at 1088 n. 2 (quoting same).
c. Administrative Interpretation
Because the Act charges the FCC with promulgating rules and administering the TCPA, we defer to the FCC's interpretations of the Act. See 47 U.S.C. § 227(c)(1). In a 1993 public notice entitled Telephone Solicitations, Autodialed and Artificial or Prerecorded Voice Message Telephone Calls, and the Use of Facsimile Machines, the FCC answered the question whether the TCPA applies to intrastate calls and facsimiles. In this public notice, the FCC explicitly stated, "Yes. FCC rules apply to in-state calls." Consumer Alert, 8 F.C.C.R. 480 (January 11, 1993).
The trial court should not have granted summary judgment on issue two because the plain language, legislative history, and administrative interpretation support that the TCPA applies to both interstate and intrastate telephone calls and facsimiles. We resolve issue two for Omnibus.
In its fifth issue, Omnibus generally complains of the trial court's granting summary judgment. We resolve this issue for Omnibus.
DUE PROCESS
In its third issue, Omnibus contends the trial court should not have granted summary judgment because ATT did not establish that the damage awards under 47 U.S.C. § 227 and section 35.47 violated either the United States or Texas constitutions. Because the trial court never had to rule on damages, it should not have granted summary judgment on this issue. We resolve issue three for Omnibus.
TRESPASS TO CHATTELS
In its fourth issue, Omnibus contends the trial court should not have granted summary judgment because ATT did not establish whether Texas law recognizes a cause of action for trespass to chattels under the facts of this case.
1. Applicable Law
To interfere wrongfully with the use or possession of property is a trespass to chattels. Jarvis v. S.W. Bell Tel. Co., 432 S.W.2d 189, 191 (Tex. Civ. App.-Houston [14th Dist.] 1968, no writ). For liability to attach, the wrongful interference must either be accompanied by actual damage to the property or deprive the owner of its use for a substantial period. Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981). We classify an interference with a chattel that "compels the defendant to pay the full value of the thing with which he has interfered" as conversion; but, if the interference with a chattel does not require the defendant to pay full value, it "may constitute trespass to chattels." Prosser Keeton on Torts § 14, at 85-86 (5th ed. 1984).
2. Application of Law to Facts
Omnibus alleged and offered evidence that ATT wrongfully commandeered its facsimile machines. By doing so, ATT dispossessed Omnibus's use of the machines and misappropriated its paper and toner when printing the advertisements. Neither the pleadings nor the summary judgment evidence allege actual damage occurred to Omnibus's facsimile machine or that the printing of facsimile advertisements deprived Omnibus of the use of its facsimile machine for a substantial period of time. See Zapata, 615 S.W.2d at 201. Accordingly, we resolve the fourth issue against Omnibus.
We affirm the trial court's judgment as to trespass to chattels and reverse and remand as to all other issues.