1 

## REVISED OPINION

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20100

CHAIR KING, INC. ET AL,

Plaintiffs-Appellants,

VERSUS

HOUSTON CELLULAR CORPORATION, ET AL,

Defendants-Appellants.

Appeal from the United States District Court

For the Southern District of Texas, Houston Division

December 15, 1997

Before POLITZ, Chief Judge, and HIGGINBOTHAM and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

Because we conclude that Congress gran ted state courts exclusive subject

matter jurisdiction over private actions under the Telephone Consumer Protection Act

of 1991, 47 U.S.C. § 227, we vacate the judgment of the district court and remand this

case to it with directions to dismiss this cause for want of subject matter

jurisdiction.

I.2

The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, Pub. L. No.

102-243, 105 Stat. 2394 (1991)(TCPA), in pertinent part, provides that “[i]t shall be

unlawful for any person within the United States

. . . to use any teleph one facsimile

machine, computer, or other device to send an unsolicited advertisement to a telephone

facsimile machine.” 47 U.S.C. § 227(b)(1)(C). The TCPA creates a private right of

action to obtain an injunction or to recover damages or $500, whichever is greater, for

each violation. § 227(b)(3). The damage award may be trebled if the court finds that

a violation was willful or knowing. Id

. The private right of action may be filed “if

otherwise permitted by the laws or rules of court of a State,

. . . in an appropriate court

of that State.” Id

.

II.

The plainti ffs-appellants brought this private action in federal district court for

damages under the TCPA alleging that the defendants-appellees had sent unsolicited

advertisements to their telephone facsimile m achines. In their private action, the

plaintiffs also sued on behalf of others who received unsolicited fax advertisements and

joined state law claims of civil conspiracy, invasion of privacy, and trespass to chattels.

Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1)&(6). The

district court dismissed all claims except the trespass to chattels claim, holding that (1)

the TCPA only regulates interstate telemarketing activity, (2) the TCPA is preempted by

the McCarran-Ferguson Act, 15 U.S.C. § 1012, with respect to the defendants that are

insurance companies, and (3) the TCPA does not violate the First or Fifth Amendments

of the Constitution of the United States. Notices of appeal were filed by the plaintiffs

and the insurance defendants.

III.3

Federal courts have only the power authorized them by Congress pursuant to

Article III of the Constitution. B ender v. Williamsport Area School District

, 475 U.S. 534,

541 (1986). Because of this, a federal appellate court has a special obligation to satisfy

itself subject matter jurisdiction exists in federal courts. Id

. The issue of subject matter

juris d iction as a question of law is subject to plenary review by this court. I ngalls

Shipbuilding, Inc. v. Asbestos Health Claimants , 17 F.3d 130, 132 (5th Cir. 1994).

The question of subject matter jurisdiction in the federal courts of private actions

authorized by the TCPA is a matter of first impression in this circuit. Only the Fourth

Circuit C ourt of Appeals and two federal district courts have decided the issue. The

Fourth Circuit, in I nternational Science & Technology Institute, Inc. v. Inacom

Communications, Inc.

, 106 F.3d 1146, 1158 (4th Cir. 1997), held that the TCPA gives

subject matter jurisdiction of claims filed by private citizens only to state courts. The

district c ourt for the Southern District of New York adopted the position taken by the

Fourth Circuit. F oxhall Realty Law Offices, Inc. v. Telecommunications Premium

Services, Ltd. , 975 F. Supp. 329 (S.D.N.Y. 1997). The district court for the Southern

District of Indiana, however, concluded that the TCPA conferred subject matter

jurisdiction of private actions upon both the state and federal courts. See Kenro, Inc.

v. Fax Daily, Inc.

, 904 F. Supp. 912 (S.D. Ind. 1995) (“Kenro I”), 962 F. Supp. 1162 (S.D.

Ind. 1997) (“Kenro II”). We agree with the Fourth Circuit and hold that federal courts

lack subject matter jurisdiction of private actions under the TCPA.

Article III, Section 1, of the Constitution of the United States vests the federal

judicial power in a Supreme Court and “in such inferior courts as Congress may from

time to time ordain and establish.” U.S. Const. Art. III, §1. Article III, Section 2 of the

Constitution provides that the judicial power of the United States shall extend, inter alia

,

to all cases arising under the Constitution, the laws of the United States, and treaties

made under their authority. Thus, Article III creates no inferior federal courts and vests4

such courts, when created by Congress, with no jurisdiction. Lockerty v. Phillips , 319

U.S. 182, 187 (1943); C ary v. Curtis

, 44 U.S. (3 How.) 236, 244-45 (1845); Turner v.

Bank of North America

, 4 U.S. (4 Dall.) 8, 11 (1799); 15 M OORE ’ S F EDERAL P RACTICE

§100App.01, 100App.--4 (3d. ed. 1997). The enumeration in Section 2 of Article III of

the cases and controversies t o which the federal judicial power extends is not selfexecuting in relation to the inferior federal courts. K line v. Burke Const. Co.

, 260 U.S.

226, 233-234 (1922); 15 M OORE ’ S F EDERAL P RACTICE § 100App.01, 100App.--4 (3d. ed.

1997). Within the permissible limits stated in the Constitution, however, Congress can

confer some or all of the judicial power upon the inferior federal courts, an d attach

conditions and limitations to the jurisdictional grant. 15 M O ORE ’ S F EDERAL P RACTICE §

100App.01, 100App.--4 (3d. ed. 1997). Accordingly, as the Supreme Court, in S heldon

v. Sill , 49 U.S. (8 How.) 441, 448 (1850), explained:

[H]aving a right to prescribe, Congress may withhold from any court of its

creation jurisdiction of any of the enumerated controversies. Courts

created by statute can have no jurisdiction but such as the statute confers.

No one of them can assert a just claim to jurisdiction exclusively conferred

on another, or withheld from all.

Section 1331 of Title 28 of the United States Code provides, in language that

repeats the language of Article III, that the district courts shall have original jurisdiction

“of all civil actions arising under the Constitution, laws, or treaties of the United States.”

Although this language suggests that Congress intended in § 1331 to confer upon

federal courts the full breadth of permissible “federal question” jurisdiction, § 1331 has

been construed more narrowly than its constitutional counterpart. S ee Verlinden B.V.

v. Central Bank of Nigeria

, 461 U.S. 480, 494-95 (19 8 3); R omero v. International

Terminal Operating Co . 358 U.S. 354, 379-80 (1959).

There is no “‘si ngle, precise definition’” of when a case falls within the original

“federal question” jurisdiction of the federal courts; “rather, ‘the phrase “arising under”5

masks a welter of issues regarding the interrelation of federal and state authority and

the proper management of the federal judicial system.’” Merrel Dow Pharmaceuticals

v

. Thompson

, 478 U.S. 804, 808 (1986) (quoting Franchise Tax Board v. Constr.

Laborers Vac. Trust

, 463 U.S. 1, 8 (1983)). The most familiar definition of the statutory

“arising under” limitation is Justice Holmes’ statement, “A suit arises under the law that

cre ates the cause of action.” A merican Well Works Co. v. Layne & Bowler Co.

, 241

U.S. 257, 260 (1916). It is well settled, however, “that Justice Holmes’ test is more

useful for describing the vast majority of case s that come within the district courts’

original jurisdiction than it is for describing which cases are beyond district court

jurisdiction.” F ranchise Tax Board

, 463 U.S. at 9. Moreover, that test provides only a

starting point for determining whether Congress, in creating a cause of action, has

withheld jurisdiction of a particular case or controversy from any or all of the courts of

its creation or has conferred jurisdiction thereof exclusively on another. S heldon

, 49

U.S. (8 How.) at 448. Inferior federal courts’ “federal question” jurisdiction ultimately

depends on Congress’s intent as manifested by the federal statute creating the cause

of action. Id .; International Science & Technology Institute, Inc. , 106 F.3d at 1153-55.

The search for Congress’s intent as manifested in the TCPA must of course

begin with the text of the statute itself. New York State Conf. of Blue Cross and Blue

Shield Plans v. Traveler’s Insurance Co. , 514 U.S. 645, 655 (1995). The TCPA, §

227(b)(3), in pertinent part, provides:

Private right of action. A person or entity may, if otherwise permitted by

the laws or rules of court of a State, bring in an appropriate court of that

State--

(A) an action based on a violation of this subsection or the regulations

prescribed under this subsection to enjoin such violations,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is

greater, or (C) both such actions.

The TCPA expressly creates a private right of action for damages and injunctive6

relief by a person who suffers a violation of the statute; and expressly grants jurisdiction

to state courts, if permitted by state law or rules of state courts, to consider and decide

such cases or controversies. The TCPA is silent as to whether the express jurisdictional

gr ant to state courts is exclusive or is coupled with an implicit concurrent grant of

jurisdiction to federal courts.

In determining the legislative intent, we follow the cardinal rule that a statute is

to be read as a whole, since the meaning of statutory language, plain or not, depends

on context. K ing v. St. Vincent’s Hospital

, 502 U.S. 215, 221 (1991) (citing Shell Oil Co.

v. Iowa Dept. of Revenue

, 488 U.S. 19, 25, n.6, 26 (1988)) (quoting N LRB v.

Federbush Co.

, 121 F.2d 954, 957 (2nd Cir. 1941)) (“Words are not pebbles in alien

juxtaposition; they have only a communal existence; and not only does the meaning of

each interpenetrate the other, but all in their aggregate take their purport from the setting

in which they are used. . . .”)(L. Hand, J.); United States v. Hartwell , 73 U.S. (6 Wall.)

385, 396 (1867)(in construing statute court should adopt that sense of words which best

harmonizes with context and promotes policy and objectives of legislature); 2A Singer,

Sutherland Statutory Construction §46.05 ( 5th ed. 1992). I f the language alone is not

dispositive, we must delve into the history and purpose of the statute. A dams Fruit Co.,

Inc. v. Barrett , 494 U.S. 638, 642 (1990).

By analogy, we also advert to the Supreme Court’s approach for determining

whether a private remedy is implicit in a statute not expressly providing one. Such a

cl aim poses an issue of statutory construction. K arahalios v. National Federation of

Federal Employees

, 489 U.S. 527, 532 (1989 ). The “‘ultimate issue is whether

Congress intended to create a private cause of action,’” Id

. (quoting California v. Sierra

Club

, 451 U.S. 287, 293 (1981)(citations omitted)); see also T ouch e Ross & Co. v.

Redington

, 442 U.S. 560, 568 (1979). Unless such “congressional intent can be

inferred from the language of the statute, the statutory structure, or some other source,7

the essential predicate for implication of a private rem edy simply does not exist.”

Thompson v. Thompson

, 484 U.S. 174, 179 (1988) (quoting Northwest Airlines, Inc. v.

Transport Workers

, 451 U.S. 77, 94 (1981)). “It is also an ‘elemental canon’ of statutory

c onstruction that where a statute expressly provides a remedy, courts must be

especially reluctant to provide additional remedies.” Karahalios

, 489 U.S. at 533 (citing

Transamerica Mortgage Advisers, Inc. v. Lewis

, 444 U.S. 11, 19 (1979)). In such cases,

“‘[i]n the absence of strong indicia of contrary congressional intent, we are compelled

to conclude that Congress provided precisely the remedies it considered appropriate.’”

Karahalios

, 489 U.S. at 533 (quoting Middlesex County Sewerage Authority v. Sea

Clammers , 453 U.S. 1, 15 (1981)).

The TCPA presents an unusual constellation of statutory featur es, v iz

., the

express creation of a private right of action, an express jurisdictional grant to state

courts to entertain them, and silence as to federal court jurisdiction of private actions.

As a general principle, “sta te courts may assume subject-matter jurisdiction over a

federal caus e of action absent provision by Congress to the contrary or disabling

incompatibility between the federal claim and state-court adjudication.” G ulf Offshore

Co. v. Mobil Oil Corp.

, 453 U.S. 473, 477-78 (1981) (citing Charles Dowd Box, Co., Inc.

v. Courtney

, 368 U.S. 502 (1962)); T afflin v. Levitt

, 493 U.S. 455, 459-461 (1990).

Thus, the TCPA’s express grant of jurisdiction would not have been necessary if

Congress had intended to confer concurrent jurisdiction upon state and federal courts.

“Concurrent j u risdiction has been a common phenomenon in our judicial history, and

exclusive federal court jurisdiction over cases arising under federal law has been the

exception rather than the rule.” C harles Dowd Bo x Co., Inc. , 368 U.S. at 507-508.

Because a statute should be construed in a way that gives meaning and effect to all the

provisions, it appears the specific authorization of state court jurisdiction was intended

as more than a confirmation of concurrent jurisdiction. U nited States v. Nordic Village,8

Inc.

, 503 U.S. 30, 36 (1992); R eich v. Acadian C orp

. , 110 F.3d 1192, 1196 (5th Cir.

1997). It is also significant that Congress expressly provided for federal court

jurisdiction over actions instituted by states on behalf of their residents. See 47 U.S.C.

§227 (f)(2). In fact, Congress established exclusive federal jurisdiction and specifically

addressed venue, service of process, and interaction with the FCC enforcement efforts.

47 U.S.C. § 227 (f)(2), (4), (7). Congress’s failure to address any of these matters with

regard to the private actions provides support for our conclusion that Congress intended

only state courts to handle these private actions.

As the Fourth C ircuit indicated, the absence of a specific reference to federal

court jurisdiction of private actions in combination with the express grant of state court

jurisdiction is “even more significant in light of the rest of the Communication Act where

Congress provided specifically for concurrent jurisdictio n when it so intended.”

International Science & Technology Institute Inc.

, 106 F.3d at 1152. S ee

, e.g.

, 47

U.S.C. § 207 (authorizing suit for damages against common carriers in any district court

of the United States of competent jurisdiction); 47 U.S.C. § 214 (c) (authorizing any

court of general jurisdiction to issue injunction for extension of lines or discontinuation

of services); 47 U.S.C. § 407 (authorizing suit in federal or state court of general

jurisdiction for common carrier’s failure to comply with order of payment; 47 U.S.C. §

5 51 (f)(1) (authorizing civil action against cable operator in a United States district

court); 47 U.S.C. § 553 (c)(1) (authorizing suit in federal court or any other court of

competent jurisdiction for unauthorized cable reception); 47 U.S.C. § 555 (a)

(authoriz ing suit in federal or state court of general jurisdiction to review actions by

franchising authority); 47 U.S.C. § 605 (e)(3)(A) (authorizing civil action in federal court

or any other

court of competent jurisdiction for unauthorized publication). We agree

with the Fourth Circuit that is it significant that “while Congress has in the

Communications Act explicitly expressed its intent to provide concurrent jurisdiction, it9

did not do so in 47 U.S.C. § 227 (b)(3).” International Science & Technology Institute,

Inc. , 106 F.3d at 1152.

The history and purpose of this statute provide further support for the conclusion

that Congress intended to confer exclusive jurisdiction upon the state courts. 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 essentia l public

safety services. S. R E P

. N O

. 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, t o enforce regulation of interstate telemarketing

activity.

On November 7, 1991, Senator Hollings, author of Senate Bill 1462 which

became the TCPA, explained the contents of the substitute bill he offered that day.

One of the provisions of that bill was the private right of action currently at issue. S ee

137 C ONG

. R EC

. S.16,204, 16,205-6 (daily ed. Nov. 7, 1991) (statement of Senator

Hollings). He explained that the private right of action was intended to make it easier

for consumers to recover damages. The provision, he continued, would allow

consumers to bring an action in state court. Senator Hollings indicated the question of

proper venue within the state was left for state legislatures to decide as this was

constitutionally a matter for the states, not the federal government, to decide.

Nevertheless, he expressed his hope that “[s]tates will make it as easy as possible for

consumers to bring such actions, preferably in small claims court.” Id . at 16,205. The

senator expla ined a small claims or similar court would be an especially appropriate

forum as consumers could appear without an attorney. He emphasized the benefits of10

a private right of action would be defeated if attorney fees proved greater than potential

damages under the statute. He continued, ”I thus expect that the [s]tates will act

reasonabl y in permitting their citizens to go to court to enforce this bill.” I d

. at 16,206.

Senator Hollings also addressed the right of action provi d ed to states under the

proposed legislation. He explained, in response to concerns that the FCC might not

have sufficient resources to enforce the bill , that state attorneys general would be

allowed under the bill to enforce its provisions in federal court. Id

.

We agree with the Fourth Circuit’s conclusion that “[w]hile Senator Hollings did

not explicitly say that only state court jurisdiction was appropriate, we believe the clear

thrust of his statement was consistent with the bill’s text that state cour ts were the

intended fora for private TCPA action.” I nternational Science & Technology Institute,

Inc.

, 106 F.3d at 1153. Support for this conclusion may be found by examining the

language of the statute as enacted in light of the senator’s statements. Senator Hollings

indicated the intent of the bill was for consumers to easily be able to enforce the bill by

recovering damages. He emphasized states should facilitate this by providing fora in

whic h consumers could appear without an attorney. The statute’s text evidences

Senator Holl ings’s hopes as it provides for the right of action in state court, but gives

states discretion over its administration. While Congress may have faced constitutional

constraints in its directives to the state courts, this would not be true with regard to the

federal courts. Although Congress could have added provisions to the TCPA facilitating

private actions in federal courts as Senator Hollings suggested the states should do,

no reference to federal courts was made at all. This absence is hardly consistent with

th e senator’s intention of encouraging consumers to bring actions under the TCPA.

From this, we conclude that Congress failed to mention federal courts in conjunction

with its creation of the private rights of action because it did not intend federal courts to

hear them.1 The FCC has not enacted a regulation or issued an order addressing this issue.

A publication prepared by the FCC to answer questions consumers might have about

the TCPA and federal rules and regulations enacted pursua nt thereto, however,

arguably provides some supp ort for our conclusion. S ee Telephone Solicitations,

11 The appellants contend that concurrent subject matter jurisdiction is presumed

under the principles espoused in Gulf Offshore Co. v. Mobil Oil Corp.

, supra. However,

that case involved a federal statute granting federal district courts “original jurisdiction

of cases and controversies arising out of or in connection with any operations conducted

on the outer Continental Shelf.

. . .” G ulf Offshore Co.

, 453 U.S. at 478-79 (quoting 43

U.S.C. § 1333(b)). The issue was whether state courts which were not mentioned in the

statute also had subject matter j urisdiction. The Supreme Court explained that “[i]n

considering the propriety of state-court jurisdiction over any particular federal claim, the

Court begins with the presumption that state courts enjoy concurrent jurisdiction.” Id

. at

478. This presumption, according to the Court, could be rebutted by “an explicit

statutory directive, by unmistakable implication from legislative history, or by a clear

incompatibility between state-court jurisdiction and federal interests.” Id

. In Gulf

Offshore Co.

, the Court concluded that the presumption had not been rebutted because

Congress did not explicitly grant federal courts exclusive jurisdiction, the operation of

the statute would not be frustrated by state court jurisdiction over personal injury

actio ns, and the legislative history could not be read to rebut the presumption of

concurrent state court jurisdiction. Id . at 478-484.

In the present case, we are not considering the propriety of state court jurisdiction

over a federal claim. Instead, we are presented with the question of whether Congress

intended to grant federal courts implied concurrent jurisdiction of federal claims that it

expressly granted state courts jurisdiction to adjudicate. After reviewing the TCPA’s

text, purpose, and history, we conclude Congress intended the state courts to have

exclusive jurisdiction over private actions filed under the TCPA. 1Autodialed and Artificial or Prerecorded Voice Message Telephone Calls, and the Use

of Facsimile Machines

, 8 F.C.C.R. 480, 1993 W.L. 756669 (F.C.C.) (January 11, 1993).

In explaining what actions may be taken to address violations of the TC PA and FCC

rules and regulations, the FCC indicated a consumer could “file suit in state court (if

your st ate permits such actions).” Additionally, “states can initiate a civil action in

federal district courts.

. . .” Id

. at 4. The possibility of a federal forum for private actions

was not mentioned.

12 The judgment of the district court is VACATED, and the case is REMANDED to

the district court with directions to DISMISS THE CAUSE FOR LA CK OF SUBJECT

MATTER JURISDICTION.