1 In2005, the TCPA was amended a nd re named the Junk Fax Prevention Act of 2005. 47 U.S.C. §227 (Supp. 2005). No. 2-08-1148 Filed: 2-24-10 Modified4-5-10 Corrected4- 27-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ ITALIA FOODS, I

NC., Indiv. and as the ) Appeal from the Circuit Court of Lake Represe ntative o f a Class o f Similarly ) Co un ty. Situated Pe

rsons, ) ) Plaintiff-Appellee, ) ) v. ) No. 03--CH--924 ) SUN TOURS, INC. , d/b/a Ho bbit Trav el, ) and PAUL GROSSO, ) Honorab le ) Mitchell L. Hoffman, Defend ants-App ellants. ) Judge , Pres idin g.

______________________________________________________________________________ Modified Upon Denial of Rehearing JUSTICE JORGENSEN d

elivere d the opini on of the c ourt: I. I NTRODUCTION Inthis interlocutory

appeal p ursuant t o Supreme

Court Rule

308 (155 I

ll. 2d R. 308), we are asked to a nswer thr ee cer tified que stions: "(1) Does the languag e and purpose of the federal Tele phone Consumer Protection Act [(TCPA) (47 U.S.C. §227 (2000)) 1 ] require that the I llinois Ge neral As sembly

ena ct enablinglegislation before private TCPA claims can be brough t and enf orced in Illinois state courts?No. 2--08--1148

-2- (2) Are the TCPA claim s alleg ed in this c ase 'statutory pe nalties' under Illinois law? And if so: (a) Are those claims assignable under Illinois law? (b) Does Illinois' two[-]y

ear statutory penalty limitations

period [(7 35 IL

CS 5/13--202 (West 2002 ))] apply to such claims, as opposed to [the federal four-y ear limita tions peri od fo r civil ac tions(28 U .S.C. §1658 (200 0))]? (3) If the claim is not assig

nable, then should a

bsent cla ss members' putat ive claim s agains tdefendants be trea ted a s tolled when no class representative with proper standing

re pr es en te d th e p uta

tiv e c la ss f

or a 2 7- mon

th p er iod?" We answer the first certified que sti on in the negative. Specifically , the Illinois General Assembly need n ot ena ct enab ling l egi sla tion before private TCPA claims can be brought and enforc ed in I llinois state co urts. As to the se cond ce rtified q uestion, w e modify

the first two parts of the question and conclude that TC PA cl ai ms ar e r em ed ia l a nd as si gn ab le an d, al te rn at iv el y, that (whether or not they are

remedial) they

are assignable because

they donot consti

tute personal-injury actions. Further, we conclude th at we need not answer subsection (b) of the se cond certified question (concerning the appropriate statute of limitations). Finally, bec ause we conclude that the TCPA claims are assignable, we do not address the third c ertified question. II . BACKGROUND OnJune 13, 200 3, in a cla ss action complain t, Eclipse Manufac turing Company , an I llinois corporation, sued

Sun Tours, d/b/a Hob

bit Travel, a trave l agenc

y, a lleging that, in July

and Aug ust 2002, Hobbit Travel sent Eclipse four unsolicited one-page faxes advert isi ng discounted travel offers

. Eclipse further alleged that Hobbit Trave l's actions violated the TCPA and the Cons umerNo. 2--08--1148

2 Illino is's junk fax statute, effective as of Janu ar y 1 , 1990, designates violations thereof as petty offense s that are subject to a $500 maximum fine. 720 IL CS 5/26--3 (West 2008). -3- Fraud and Deceptive Business Practices Act (Fraud Act) (815 IL CS 505/1 et seq. (West 2002)) and constituted

common-law conversion. As to the TCPA claim, Eclipse sought statutory a nd punitive damage s, an injunction, and attorney f ees. Eclipse s u bsequently amende d its complaint, adding Hobbit Tr avel's preside nt, Paul Gr

osso, as a defenda nt. OnApril 5, 20 07, Hobbit Travel moved to dismiss Eclips e's ame nded comp lain

t, arguin g, inter alia , that the TCPA claim was not cognizable in Illinois because the operative language

of the TC PA

-- na me ly, that state court TCPA

actions mu st be "ot

herwise permitted by the laws or r ules of court of a State" (47 U.S.C. §227(b)(3) (2000))-- re quired th e Ill inois Gene ral Asse mbly to affirma tively opt in

to the TCPA's enforcement scheme, which it had not done. 2 On July 26, 2007, the trial court denied

Hobbit Travel's motion as to the TCPA claim, finding that TCPA claims may be broug ht in I llinois cou

rts. OnAugust 30, 20 07, R obert Hinm an, Ecl ipse's president and owner, was substituted in for Eclipse as plaintiff by filing

a second amended

complain t. Hinman alleged that the same four faxes

were transmitte d to him

and not to Eclipse. He further alleged that, on Nove mber 30, 2005, several years after r eceivin g Hobbit Travel' s faxes, he

sold Eclip se's sto ck to a third part y, b ut express ly retained the rig ht to pursue this TCPA action by virtue of an assignment of tha

t claim (f rom Eclip se to Hinman). OnOctober 1, 2007, defendants moved to dismiss the second amended complaint. They challenged

Eclipse's assignment of its TCPA claim to Hinman, arg uing that the claim was not assigna ble becaus e it co nsti tuted a stat utory pen alty. Defe ndant s argued that t he TCP A's fixedawardNo. 2--08--1148

-4-

of $500 per violation (

47 U.S.C. §2 27(b)(3 )(B) ( 2000)) ma de the cl aim

a statutory pena

lty under the test this court set forth in McDonald's Corp. v. Levine , 108 I ll. App. 3d 732, 738 ( 1982). De fendant s thus asserte d that Eclips e's assignment of the TCPA claim to Hinman was invalid because the majority rule pro vide s that claims under penal statutes are not assignable. The y also arg ued that Hinm an's claims were time-barr ed beca use they were

brought over five y

ears after each of the f

our faxes was allegedly

received (in July and Aug ust 2002). OnJanuary

31, 2008, I

talia Fo ods, I

nc., soug ht leave to substitut

e in for H inman and

file a third amended complaint, asserting that it had rec eived ove

r 25 faxes from def endants. Over Hob

bit Travel 's objection, the tria l court g ranted I talia Fo ods' moti on and sub sequentl y a llowed Ho

bbit Travel to file a motion to dism is s the t hird ame

nded comp laint, inc orporat ing its a rgumen ts concerning Hinman's invalid assig nment from Eclipse. Inth e t hi rd am en de d c om pl ai nt , d at ed Fe br ua ry 2 8, 2008, I talia Fo ods alleg ed that Ho bbit Travel sent it

28 unsolicited one-page faxes from June 24, 2005, through April 17, 2007, advertising discounttravel d

eals. I talia Fo ods furth er alleged that Ho bbit Trav el's ac

tio ns viola

ted the TC PA and Fraud Act and constituted common-law conversion. As to the T CPA claim, Italia Foods sought $500 in sta

tutory damage s for ea

ch violat ion, an inj unction, a

nd costs. Hobbit Travel moved to dismiss (735 IL CS 5/2--615, 2--619 (West 2002 )) portions of I talia Foods'complain

t, arguin g that: ( 1) TCPA cla

ims are not cogniza

ble in Illinois courts for the reasons set forth in Chair King, Inc. v. GTE Mobil net of Houston, Inc. , 184 S.W.3d 707 (Tex. 2006) (hereinafter Chair King ); (2) the limitations

period f or TCPA cla

ims should be measured from the filing of Italia Foods'

third amended complaint on February 28, 2008, and

notfrom Eclipse's original complaint (filed June 13, 2003); (3) the applicable limitations period f or TCPA cla

ims is two yearsNo. 2--08--1148

-5-

(735 IL CS 5/13--2 02 (West 20 02)), as opposed to

four yea rs (28 U.S.C. §1658 (2000)) as argued by Ital ia Foods; and (4) the limitations period was not tol led du ring t he 27-month period from November

30, 2005 (

when Ecl ipse lost st

anding to brin g its claims) , to February 28, 2008 (when Italia Foods filed its complaint), as neither E clipse nor Hinman had standing during this time. Inresponse , Ita

lia F oods invoked the class tolling rule announced in American Pipe & Construction Co. v. State , 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974 ), arg uing tha t it preserved the otherwise stale claims of putative class members back to June 13, 1999, four y ear s before Eclipse's original complaint. Hobbit Travel replied that the putative class' s claims could not be tolled under American Pipe due to the time that lapsed before Ita lia Foods replaced Hinman as the named pla

intiff. A ccordin

g to Hobb it Trave l, Eclipse could not have validly

assigne d its TCPA claim to Hinman under

Illinois law, because such a claim constituted a statutory pena lty; therefore , a 27-mo n th gap (

Novembe r 30, 2005 , when Ec lipse pur ported to assign i ts claims to

Hinman, to February 28, 2008, when Italia Foods re placed Hinman

as the named plaintiff) existed during which no named p laintiff

with prope

r standin g repr esented the putat ive clas s. OnAugust 26, 2008, the trial court denied Hobbit Travel's motion to dismiss I tal i a Foods' TCPAclaim. The court rejected Hobbit Tr avel's Chair King argument that TCPA claims are not cogniza ble in Illinois state courts. I t furthe r found tha

t Eclipse 's TCPA c laim was a ssignab le to Hinmanunder Kleinwort Benson North America, Inc . v. Quant um Financ ial Servic es, Inc. , 181 I ll. 2d 214 (1998), which had allowed a company to assign a

punitive d

amage s claim to i

ts shareho lders. The court further

found tha t the TCPA is

not a pena

l statute a nd that TCPA

claims ar e subject to the federal four-y

ear sta tute of limitations (28 U.S.C. §1658 (2000)). Finally, the cour tfound that the American Pipe tolling doctrine applied and that the class's claims rela ted back to June 13, 1999.No. 2--08--1148

3 Following several requests by the parties for exten sions of time to file t heir brie fs on appe al, this case was ready

for this court's review in September 2009. -6- OnNovember 20, 2008, the court granted Hobbit Tra vel's motion

to make Rul e 308 find

ings, and, on December 2, 2008, it entered an order certifying

three questions. Hobbit Travel petitioned for leave to appeal to this court, and, on February 25, 2 009, we allowed th e appeal as to the three certifi ed questi ons. 3 III. AN ALYS IS

A. Jurisdic tion of Illinois Cour ts Over T CPA Claims The fi rst cert

ified que stion asks : "Does t he lang uage a nd purpos e of the f

ederal [TCPA ] require that

the I llinois General Assembly enact enabling legislation before private TCPA claims can be brought and enf

orced in Illinoi s state court s?" Defendants urge us to answer " yes" to this question and order that Italia Foods'

TCPA claim be dismissed with prejudice because it is undisputed that the G eneral Assemb ly never passed legisl ation auth orizing TC PA suits in this s tate. Be for e addressingthe parties' specific arg uments, we first provide an over v iew of some constitutional considerations and the statute. 1. Suprema cy Clause The suprema

cy clause provides: "This Constitution, and the Laws of the United States which shallbe made i

n Pursuance thereof

*** shall b e the supr

eme L aw of the

Land ; and the Jud

ges in every State shall be bound ther eby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2.

"Federal law is enf orceab le in state courts not because Congress has deter mined that federal courts woul d otherw is e be burdened or that state courts might provide a moreNo. 2--08--1148

-7-

convenient

forum--although both might well be true--but because the Constitutionand laws passed pursuant to it are a s much law s in the State s as laws p assed by the state legislature. The Supremacy

Clause makes those laws 'the supreme L aw of the Land,' and cha rges st ate courts with acoordinate responsibility to enfor ce that law according

to their regular modes of procedure." Howlett v . Rose , 496 U.S. 356, 367 , 11 0 L. Ed. 2d 332, 347, 110 S. Ct. 2430, 2438 (1990). There is a presumption, therefore, that federal ca uses of action are enforceable in state courts. See Gulf Offshore Co. v. Mobil Oil Corp. , 453 U.S. 4 73, 478, 69L. Ed . 2d 784, 79 1, 101 S. Ct. 2870, 2875 (1981) ("In c ons idering th e propriety of

state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy c oncurrent jurisdiction"); see also R.A. Ponte Arch itects, Ltd. v. Investors' Aler t, Inc. , 382 Md. 689, 715, 857 A.2d 1, 16 (2004) (" Typ ic al ly, when Cong

ress c reates a civil cau se of action, it aut horizes fe deral tr

ial cour ts to enterta inthe caus e of act

ion. I t somet imes e xp ressly g

rants concurrent jurisdiction to state trial courts. When Cong ress is silent concerning state court jurisdiction over fede ral causes of action, there is a 'deepl y rooted p resum ptio n in fa vor of concu rrent state court juris dicti on,' Tafflin v. Levi tt , 493 U.S. 455, 459, 110 S. Ct. 792, 795, 107 L. Ed. 2d 887, 894 (1990)"). Only in limited cases may a state disc r im inate against federal cause s of action, because, where it does so, the state's law generally violates the supremacy

clause. R.A. Ponte

Archite cts , 382 Md. at 715, 857 A.2d at 16. "Congress, however, may con f ine jurisd iction to the feder

al court s either explicitly or implicitly. T hus, the presumption of concurrent jurisdiction can be rebutted

by

anexplicit statutory directive, by unmistakable implication from legislative history , or by a cle arNo. 2--08--1148

-8-

incompat ibility between state-court jurisdict ion and federal interests ." Gulf Offshore , 453 U.S. at 478, 69 L. E d. 2d at 79 1, 101 S. Ct. at 2875 ; cf. Haywood v. Dr own , 596 U.S. ___, ___, 173 L. Ed. 2d 920, 928, 129 S. Ct. 210 8, 2114 (2 009) (pr esumption

of concu rrent jur isdiction i s defea

ted in only two narrow

circumst ances: w hen Cong ress expr essly ousts state

courts of jurisdiction and when a state court refuses jurisdiction on the basis of a ne ut ra l s ta te ru le of

co ur t a dm in is tr at io n) . G en er al ly,

a state may apply

to the federal cause of action a neutra l rule of court

administr

ation, unl ess that r

ule is preempted by f

ederal law. Howlett , 496 U.S. at 372, 110 L. Ed. 2d at 351, 110 S. Ct. at 2440-41;

see also Haywood , 586 U.S. at ___ , 173 L. E d. 2d a t 928 , 129 S . Ct. at 211 4, quo ting Tafflin , 493 U. S. at 458, 10 7 L. E d. 2d at 89 4, 110 S. Ct. a t 795 ("[O ]nly a

neutral jurisdict ional rule will b e deemed a 'vali d excuse'

for depa rting f rom the de fault ass

ump tion that 's tate courts have inherent

au th or it y, and are thus presumpt ively compete nt, to adju dicate claims arising under the laws of the United States' "). 2. TCPA The TCPA was e

nacted i n 1991 (Pub . L. N o. 102--2 43, 105 Sta t. 2394 (199 1)) and i

t amended Tit le II of the Communications Act of 1934 (47 U.S.C. §201 et seq. (1994)) , princip ally by adding a new se ction (47 U.S.C. §227(1994)) . The sta tute places restrictions on unsolicited, automated

telephone calls to

the home a

nd restr icts cer tain uses of facs imile machines and automatic dialers. 47 U.S.C. §227(b)(1) (2000). The TCPA "seeks to addre ss the increased use of automated telephone equipmen

t to make te lephone c alls in bulk and fax unsolicited advertisements that cross state lines and fall outside the regulatory jurisdi ct ion of indi vidual st ates." Portuguese American Lea dershipCouncil of the United States , Inc. v. I nvestors' Alert, Inc

. , 956 A.2d 671, 674 (D.C. 2008).No. 2--08--1148

4 The majority of fede

ral courts that have considered the issue have he ld that, although federal courts have exclusive jurisdiction ove r TCPA enforcement actions brought by state attorneys g eneral and the FCC, federal courts have no jurisdiction to hear private ri ghts of actionunder the TCPA. Specific ally , six courts o f appea l have he ld

that fed eral co urts lack federal question subject matter jurisdiction to hear TCPA ca ses. See Murphey v. Lanier , 204 F.3d 911, 913-15 (9th Cir. 2000); Foxhall Realty L aw Offices, I

nc. v. Telecommunications Premium Services, Ltd. , 156 F.3d 432, 438 (2d Cir. 19 98); ErieNet, Inc. v. Velocity Net, I nc. , 156 F.3d 513, 520 (3d Cir . 1998); Nicholson v. Hooters of Augusta, Inc

. , 136 F.3d 1287, 128 9, modified , 140 F.3d 898 (11th Cir. 1998); International

Science & Technology

Institute, Inc. v. I

nacom Communications, Inc. , 106 F.3d 1146, 1152 (4th Cir. 1 997); Houston Cellular , 131 F.3d at 513. However, one cour t of appe al has he ld

that federal question j urisdicti on is prope rly invoked in

private TCPA claims. See Brill v. Countrywide Home Loans, I

nc. , 427 F.3d 446, 450-51 (7th Cir. 2005). Further, three courts of appeal have held -9- The statute contains some "un usual" features. Chair King, Inc. v. Houston Cellular Corp. , 131 F .3d 507, 512 (5th Cir. 1997) (hereinafter Houston Cellular ). The TCPA "creates a fede ral private right of action, but *** confers ex clusive ju risdicti on on state courts to en tertain it ." Chair King , 184 S.W.3d at 710. The statute also contains a federal enforc ement component that authorizes state attorne

ys g eneral to bring civil act ions in fe deral c ourt on be

half of their state

residen ts to obtain injunctive relief a

gainst u nauthori z ed telepho ne calls and facsimiles and to recover monetar y damage s. 47 U.S.C. §227(f)( 1) (2000). The TCPA provides that the federal district courts have "exclusive jurisdiction" over ac tions brought by s tate attorneys g eneral. 47 U.S.C. §227(f)(2) (2000). The statute also authorizes the Federal Communica

tions Commiss ion (FCC)to intervene as of right in any state attorne

y ge neral's action. 47 U.S.C. §227(f)(3) (2000). 4No. 2--08--1148

that federal court s may

he ar TC PA cl ai ms wh en su bj ec t m at te r j ur is di ct io n i s b as ed on di ve rs it y. See US Fax Law Center, I nc. v. iHire, Inc. , 476 F. 3d 1 112, 1118 ( 10th Cir. 20 07); Gottlieb v. Carnival Corp. , 436 F.3d

335, 341 ( 2d Cir. 200 6); Brill , 427 F.3d at 450-51.

5 The second private cause of action in the TCPA targe ts violations of the F CC's do-n ot-call rules and, as in the first cause of action, applies "if other wise permitted

by the laws or rules of court of a State." 47 U.S.C. §227(c)(5) (2000). -10- As releva nt here, the TCPA pr

ohibits th e "use[of] any telephone fac simile machine, computer , or other

device t o send an u

nsolicite d advert

isement to

a telephone fac simile machine." 47 U.S.C. §227(b)(1)(C) (2000). The statute's first private r ight of action, 5 which tar

gets the misuse of fax machines, prerecorded messag e technology , or automatic dialing machines, is contai ned in section 227(b)(3):

"A pe rson or e ntity

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 violat ion of this s

ubsection or the r

egula tion s prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetar

y lo ss from suc

h a violat ion, or to receive $500 in damages for e ach such violation, whichever is greate r, or (C) both su

ch actions. If the co urt fi nds t hat th e defen dant w illf ully or kn owingl y vi olate d this subsection or the regulations prescr

ibed unde r this subse ctio n, the court may, in its discretion, incre ase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of

this paragraph." (Emphasis added.) 47 U.S.C. §227(b)(3) (2000).No. 2--08--1148

-11-

The first certified question concerns the cong ressional intent

und erlying

the foregoing emphasized

language and its relationship with state law. The fundamental rule of statutory constructionis to as certain and give effect to the intent of the legislature. King v. First Capital Financial Services Corp. , 215 Ill. 2d 1, 26 (2005). The best indicator of the legislature' s intentis the langua ge in the statute, which must be accorded its plain and ordinary mea

ning. King , 215 I ll. 2d at 26. I n addition to the stat

utory langua ge, co urts may consider the

purpose behind the law

and the evils sought

to be remedied, as well as the consequence s that would result from construing the law

one way or the othe

r. Williams v. Staples , 208 I ll. 2d 480, 4 87 (2004) . Where a statute is capable of more tha n one rea sonable

interpre tation, the statute will be deemed ambiguous. General Motors Corp. v. State of

Illinois Motor V ehicle

Review Board , 224 Ill. 2d 1, 13 (2007). In su ch case s, courts may consider extrinsic a

ids to construction, such as legislative history

. County of Du Page v. Illinois Labor Relations Board , 231 Ill. 2d 593, 604 (2008). Questions of statutory inter pretation are subject to de novo review. Harrisonville Telephone Co. v. Illi nois Comm erce Co mm'n , 212 Ill. 2d 237, 247 (2004). We conclude that the phrase "if otherwise pe rmitted by the laws or rule s of

court of a State" is ambiguou s, as it

is unclear what, if any , state action is required before private ac tions may

comme nce in state c ourts. Indeed, three g eneral interpretations of the TCPA's "if ot herwis e permitted" language have e merged: (1) the "opt-out" approach; (2) the " acknowledgment" approac h; and (3) the "opt-in" approach. Accounting Outsourcing, L LC v. Verizon Wire less Pers o nal Communica

tions, L.P. , 329 F. Su

pp. 2d 789, 795 (M.D. La. 2004). We conclude be low that the "acknowledgment" appr

oach is the corr ect f rame work to an aly ze the TCPA's private right of action.No. 2--08--1148

6 The federa

l-question statute p

rovides: "Th e district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §1331 (2006). -12- a. "Opt-out" Approach The "opt-out" approach interpre ts the TCPA' s "if

otherwis e permitt

ed" lan guag e to auth orize private TCPA suits in state courts without affirmative state action. MLC Mortgage Corp. v. Sun America Mortgage Co. , 2009 OK 37, ¶13, 212 P. 3d 1199, 1205. However, the theory allows states to legisla tively decline to address

such suits

. Chair King , 184 S.W.3d at 714. The courts adopting the "opt-out" approach ge nerally base

their reasoning on languag e in the Fourth Circuit's decision in International Science

. The International Science court addressed three issues. First, it was presente d with th e question wheth er the p ermis sive l anguage of the TCPA 's private-action provision at issue here--that

a private action "may " be brought in state courts--does notmake state court jurisdiction exclusive. The Fourth Circuit he ld that Cong ress did not intend to

grant j urisdicti on over private a ctions to federal courts, w

here it me ntioned on

ly s tate courts in the provision. International Science , 106 F.3d at 1152. The court

relied on the fact that federal courts require specific grants of jurisdiction; that the statute specifically pr

ovides that private actions may be brought in state courts and that actions by the state s must be bro ught in federal courts; that Congress explicitly provided for concurrent jurisdiction in other sections of the Communications Act; and that the TCPA 's legis lati ve his tory's refere nce to small-cl aims cour ts support s a concl

usion that the claim s are be st resolve d in state courts. International

Science , 106 F.3d at 1151-53. The second issue the court addressed involved whether the general federa

l-question jurisdictional statute 6 (28 U.S.C. §1331 (1990)) confers onNo. 2--08--1148

7 Several courts refer to this portion of the International Science decision as " dicta ." See, e.g. , Accounting Outsourcing , 329 F. Supp. 2d at 800. -13- federal courts ju

risdiction over pr

iv ate ac tions. The court held that it does not, because the "particularized

congressional intent manifested in 47 U.S.C. §227(b )(3) governs, not the general proposition announced in §1331." International Science , 106 F.3d at 1155. Third, the International Science court ad

dressed whether finding exclusive state jur isdiction r aised constitutiona

l question s, sp ec if ic al ly: (1) whether it would result in a violation of the equal protection clause; and (2) whether it would infringe on the states' tenth amendment rig hts to govern without int erference from the federal government. As to equal protection, the court stated, 7 inresponse to an arg ument tha t the "if otherwis e permitte d" provi so violate s equal pr otection because it allows a

priv ate c ause of action only where a state has no statutory prohibition again st

unsolicited fax transmissions and, therefore, citizens of states that have no prohibition would not have the benefit of the federal statute:

" The clause i

n 47 U.S.C. § 227(b)( 3) 'if otherwise permitted by the laws or rules of court

of

a State' does not condition the s ubstantiv e right to be fre e from un solicited faxes on st

ate approval

. Indeed, that substantive rig htis enforceable by

state attorneys g eneral or the [FCC] irrespective of the availability of a private [right of] action in state court. Rather, the clause recognizes that states may ref use to exercise jurisdiction authorized by t he statute ." (Emphases added.) International Science , 106 F.3d at 1156. The court noted

that, to the extent the existence of a private right of action va ried bet ween the states, state and federal governments could still enforc e the same substantive rights in federa l court, a nd this inequali ty w as ration

ally related to a leg itimate g overnme ntal inter est:No. 2--08--1148

8 The tenth amendment provides: "The powers not deleg ated to the United States by the Constitution, nor pr ohibit ed by it to the States, are r eserved to the States respectively , or to the people." U.S. Const., amend. X. -14- "[C]ongr ess understandably a

voided opening federal courts to the millions of poten tial private TCPA claim s by

authorizin

g priva te actions only in state courts, presumably in the smallclaims courts. Similarly concer ned over the poten tial impact of priva

te actions on the administration of state courts, Congress included a provision to allow the states to prohibit private TCPA actions in their

courts. * ** With

those interests in mind and recognizing that other enforc ement mechanisms are available in the TCPA, we believe Cong ress acted rationa lly in *** allowing

states to c lose [their

courts] to the millions of private actions that could be filed if only a small portion of ea ch yea r's 6.57 billion telemarketing transmissions were illegal un der the TCP A." International Science , 106 F.3d at 1157. Addressingthe tenth

amendme

nt, 8 the cour

t held th at Congress did not overstep the amendment

when it enacted the TCPA, because it explicitly recognized the "states' powe r to reject enforcement

in their courts of the federall y created right." International Science , 106 F.3d at 1157. The court acknowledged that, in Testa v. K att , 330 U.S. 386, 394, 91 L. Ed. 967, 972, 67 S. Ct. 810, 814-15 (1947), the Supreme Court held that the supremacy clause pre cl udes state courts from refusing to enforce fede

ral claims. However, the court also noted that Testa 's holding was limited to federa l enactme nts that provide for concurrent

state and feder

al jurisdi ction, wh

ich is not the case with the TCPA, which provides for exclusive state jurisdiction. International Science , 106 F.3d at 1157-58. For this reason, the court declined to extend Testa to the TCPA, noting that adopting an "opt-ou t" approach

would avo id

th e c on st it ut io na l i ss ue le ft un de ci de d b y Testa --whether the TC PANo. 2--08--1148

-15-

violates the tenth amendment by c oercing states to enforce fe deral law: "Congr ess enac ted the TC PA to assist states where the

y la cked jur isdiction; it

empower ed state s themselv es to enf orce the TCPA infedera l court; it authorize d private

enforc ement exc lusively

in state c ourts; an

d it reco gnized st

ate power to reject Congress' autho rization ." International Science , 106 F.3d at 1158. By this court's count, seven states' courts appe ar to have conclude d that the "opt-ou t" approach is the correct framework. S ee Edw ard s v. Dir ect Acc ess , LLC , 121 Nev. 929, 932, 124 P.3d1158, 116 0 (2005) ( adopting "opt-ou t" appr oach on the basis of

suprema

cy -clause considerations); Lary

v. Flasch Business Consulting , 878 So. 2d 1158, 1164 (Ala. Civ. App. 2003) (considering only

"opt-out" and

"opt-in" approachesand adop ting "o pt-out" approac

h on the ba sis of suprema cy -clause principle s); Kaufman

v. ACS Systems, I

nc. , 110 Cal. A

pp. 4th 886, 895, 2Cal. Rptr. 3d 296, 304 (2003) (rely ing on Inte

r national Science , noting that the "opt-in" approach ha s been criticized and is the minority view, and noting that California had not prohibited TCPA actions instate court); Reynolds v. Diamond Foods & Poultry, I nc. , 79 S.W.3d 907, 910 (Mo. 2002) (following International Science and rejecting

"opt-in " appro ach); Zelma v. Market U.S.A. , 34 3 N. J. Super. 356, 366, 778 A.2d 591, 598 (App. Div. 2001) (following International Science and rejecting "opt-in" arguments); Hooters of Augusta, I nc. v. Nicholson , 245 Ga. App. 363, 365-66, 537 S.E.2d 468, 470-71 (2000) (finding no clear authority, construing

TCPA to provide a remedy for Geo rgia citizens, findi ng International Science per suas ive, and determining that Georgia la w did not expressly prohibit private T CPA action s); Kaplan v . Democr at & Chronicle , 266 A.D.2d 848, 849, 698 N.Y.S .2d 79 9, 800 -01 (A pp. Di v. 199 9) (ci ting International Science and noting the absence of any state statute de clining to exercise jurisdiction over TCPA claims).No. 2--08--1148

9 New York's intermediate courts appear to be split on whether the "opt-out" or "acknowledgment" approach is the correct analy tical framework. Compare Kaplan , 266 A.D.2d at 849, 698 N.Y.S.2d at 800-01, with Schulman , 268 A.D.2d at 179, 710 N.Y.S.2d at 372. -16- One court has commented that the International Science court "neglected to rea

lize that allowing states to 'opt-out' could create a different constitutional issue, namely[,] whether Congre ss can giv e a state

authority to arbitr arily close its courts to a federal remedy . It is this constitutional consideration

which forms the ba sis of the ' acknowl edgmen t' approach." Accounting Outsourcing , 329 F. Supp. 2d at 798. b. "Acknowledgment" Approa ch The "ackno

wledgm ent" appro ach req

uires " no enabli

ng leg islation f

or partie s to asser

t privat e TCPAclaims." MLC Mortgage Corp. , 2009 OK 37, ¶12, 212 P.3d 1199, 1204. Courts ado pting thi s approach, of which there are seven, interpre t the TCPA 's "if othe

rwise pe rmitted" clause a s merely acknowledging

"the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedura l rules to accommodate TCPA claims." Schulmanv. Chase Manhattan Bank , 268 A.D.2d

174, 179, 710 N.Y.S.2d 368, 372 (App. Div. 2000) (adopting "acknowledgment" a pproach and rejecting " opt-in" approach on the ba se s o f s up re ma cyclause consi derati ons, t he sta tute's framework, and its legislativehistory); 9 see also MLC Mort gage Corp. , 2009 OK 37, ¶¶12, 19, 212 P.3d 1199, 1201, 1207 (adopting "acknowledg ment" approach on the bases tha

t the leg islature

previous ly r

ecogn ized that a

n analog ous state- law claim may be

cr iminally prosecuted and that the Oklahoma Constitution

guara ntees Ok lahoma c itizens ope

n acces s to the judic ial sy stem and a llocates "unlimite d original jurisdi ction of a ll ju sticiable matters not otherwis e restricted to the district courts" ); Portuguese American L eadership Council of the UnitedNo. 2--08--1148

-17-

States , 956 A.2d at 677-80 & n.8 (noting default rule tha t feder al laws a re enforceabl e in state

courts unless there is an explicit statutory directive a nd adopting "ackno wledgment" approach by

relying

onstatute's language, w

hich the court read

to refer to neutral laws and rules gove rning each

state 's court system, in addition to the statute's purpose, le g islative h istory , and FCC i nterpre tation; al so concludingthat it need not dec ide whether District o f Columbia

is free t o "opt out "); Consumer Crusade, Inc. v. Afforda

ble Health Care Solutions, Inc. , 121 P.3d 350, 354-55 (C olo. App. 2005) (relying on statute's legislative history and language a

nd interpreting the "ackno

wledgm ent" appro ach

as avoiding the constitutional problems of the "opt-i n" and " opt-out" approac hes); R.A. Ponte Archite cts , 38 2 M d. at 70 6- 07 , 8 57 A. 2d at 11 (r el yin g o n s ta tu te 's la ng ua ge , l eg is la ti ve hi st or y, and suprema cy -clause consider ations, a nd other s tates'decision s); Mulhern v. MacLeod , 411 Mass. 754, 755-59, 808 N.E.2d 778, 779-81 (2004) (rejecting "opt-in" approac h; adoptin

g "acknowledg

ment" approach on the bases of sup remacy-cl ause p rinci ples, statu te's la nguage and legislative history , and other courts' decision s; declini

ng to ad dress whether

states ma y " opt-out" ); Condon v. O ffice D epot, Inc. , 855 So. 2d 644, 647-4 8 (Fla. App. 2 003) (rejecti ng "opt-in" a p proach; adopting "acknowledgment" approach on the bases of supremacy clause, statute's languag e, and legislative history). "Under [the 'ac knowledg ment'] vie w, no state

can ref use to entertain a private TCPA action, buta state is not compelled to adopt special procedural ru les for s uch actions ." MLC Mort gage Corp. , 2009 OK 37, ¶12, 212 P.3d 1199, 1204. Advocates of this interpretation base the ir

opinions

onthe supremacy

clause and the TCPA's legislative history

. Accounting Outsourcing , 329 F. Supp. 2d at 798. As to the su

premacy c lause, th ey

conclude that per mitting st ates to " opt-in" or "opt- out" would violate the supremacy

clause's languag e making federal law the supreme law of the land andNo. 2--08--1148

-18-

charging states courts with a coordinate responsibility to enforce federal

law pursu ant to the ir

regular modes of procedure. Schulman , 268 A.D.2 d at 177-7 8, 710 N.Y .S.2d at 37 1. "[F]ed eral law must take state courts 'as it finds them,' because the states 'ha ve great latitude to establish the structure and jurisdiction of their

own co urts. ' [ Howlett , 496 U.S. at 372, 110 L. Ed. 2d at 351, 110 S. Ct. at 2441]

. Thus, a stat e may decli ne to e xerci se jur isdi ction over a f ederal claim by applying a neutral rule of judicial administration. [Citation. ]" Consumer Crusade , 121 P.3d at 353. As to the TCPA's legislative history , proponents of the "acknowl edgmen t" theor y po int to South Carolina Senator E

rnest Hol lings'comments t o Congre ss before the bill's passage, c oncerning the private right of action:

" 'The substi tute bill c ontains a private right- of-act

ion provis ion that wi ll make it easier for consumers to recover damag es from receiving these computerized ca lls. The pr ovision would allow consumers to bring an action in State court ag ainst any en tity tha t violates the bill. T

he bill doe s not, because of constitutional constraints, dictate to the States whichcourt in e ach State

shall be the proper venue for such an action, as this is a matter f or State legisla

tors to determine. Nevertheless, it i s my hope that States will make it aseasy as possible for cons umers to bring suc

h actions , prefe

rably insmall claims court. The consumer outra ge at rece iving the se calls is clear. Unless Congress makes it easier f or consumers to obtain damages from those who violate this bill, these abuses will undoubtedly continue. Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemar keter. H owever , it would defeat the purposes of the bill if the attorne ys' costs to consumers of bringing an actionwere g

reater than the p otential d

amage s.No. 2--08--1148

-19-

Ithus expect that the St

ates will a

ct reas onably

in permitt

ing thei r citizens to go to c ourt to enforce this bil l.' " R.A. Ponte Archite cts , 382 Md. at 710-11, 857 A.2d at 13-14, quoting 137 Cong. Rec. 30821-22 (1991) (statement of Senator Hollings)

. Advocates of the theor y "argue that the 'if other wise p ermit ted' la nguage means that states

are permitte d to determine whichof their c ourts will hear TCPA claim s, not whether their sta te will be open to such claims." (Emphasis in original.) Accounting Outsourcing , 329 F. Supp. 2d at 799. Some court s also read an expr essio n of co ngress ional inten t in t he sta tute's framework, wherein the states are given exclusive jurisdiction over private suits and federal courts are limited to civil actions brought by state attorney

s general or the FCC. Schulman , 268 A.D.2d at 178, 710 N.Y.S.2d at 371.

c. "Opt-in" Approach The "opt-i n" appr oach, which defend ants u rge us to adopt, concludes that Congress intended to deprive

state co urts of jur

isdiction over priv ate TCPA c laims. I t interpr ets the sta

tute's " if otherwis e permitte d" lang uage a s indicati

ng that t he TCPA doe s not cr eate an immediate ly enforc eable

right. Under this approach, actions may be maintained in state courts only upon a legislative action or

court ru le "optin g-in" to exercise jurisdiction over such actions. MLC Mort gage Corp. , 2009 OK 37, ¶13, 212 P.3d 1199, 1205. Only one state- -Texas--ha s adopted the "opt-in" th eo ry. In Chair King , the Texas Supreme Court held that unsolicited faxes sent before the enactment of a state statute permitting a private right of a ction for TCPA violations were not actionable under the TCPA in Texas state courts. Chair King , 184 S.W.3d at 708. The court held that the TCPA 's plain, unambig

uous lang uage, its purpose, and

its historic al context warran ted adopt ion of the"optin" approach. Chair King , 184 S.W.3d at 711.No. 2--08--1148

-20-

The court reviewed

the three general approa

ches to interpreting the statutory language. The court rejected the "acknowledg ment" approach, findi ng n o supp ort fo r it i n the s tatut ory language

or the legislative history. A s to the statutory lang uage, the court not

ed that th e "ack

nowledg ment" approach risks violating the supremacy clause b ecause

it fails to g

ive eff ect to all of the la nguag e in the statute: "Had the TCPA simply provided that '[a] person or entity may ... bring ... an

action based on

a [ TCPA ] violation, ' the sta tes' constitutiona

l obliga tion under

the Supre

macy Clause to enterta insuchclaims wo

uld be irr efutabl e. But Con

gress c hose to qua

lify the priva te TCPA right of actio n it

created by

including the proviso 'if otherwise permitted by the laws or rules of court of a State.' [Citation.] Failure to give effectto the statutory proviso would itself run the risk of violating the Supremacy Clause by

refusin g to apply the fede

ral right as written." Chair King , 184 S.W.3d at 712. The court al so found the " if otherwise permitted" languag e "doubly r edundant" under the "acknowledgment" a

pproach. Chair King , 184 S.W.3d a t 713. I t explained

that: "State district courts of gene ral ju risdiction are presumed to have adjudicative power ove r federa l statutor y pr ivate da mage c laims unle ss Congr ess spec ifically

decides otherwis e, so there would be no reaso n for Congress to import that general principle into the statutory proviso when it do es not do so inother federalstatutes. [Citation.] Ne verthel ess, Cong

ress did choose to acknowledge this gene ral principle elsewherein the TCPA by stating that suit may be brought 'in an appropriate c ourt of that State.' 47 U.S.C. §227(b)(3). Inte rpreting the 'if otherwis e permitt

ed' pr ovision to have the s ame m eaning 'would b e redund

ant and r iskNo. 2--08--1148

-21-

rendering the words meani ngless .' [ Houston Cellular ], 135 S.W.3d at 382." Chair King , 184 S.W.3d at 713. As to the pro vision's

refer ence to r ules of c ourt (" if

otherwis e permitt

ed by the laws or

rules of court of a State" (emphasis added) (47 U.S.C. §2 27(b)( 3) (2000)), the court dismissed the "acknowledgment" approach proponents' arg um ents th at the phras e evid enced C ongres s's acknowledgment

of st at es ' r ig ht s t o i nd ep en de nt ly a d minister their court systems and evide nced a lack of intent to require affirmative state legislative a ction before a party

could bring a privat

e TCPA claim in state court, noting that such a reading would re nder as surplusag e the " 'if othe rwise permitted by the laws *** of a

State' " languag e. Chair King , 184 S.W.3d a t 713, quoti

ng 117 U .S.C. §227(b)(3) (2000). Reviewing Senator H ollings' comments

when he i ntroduce d the subst

itute bill containing the private right of act ion, the court concluded that the speech does not compel adoption of the "acknowledgment" th eo ry. In its assessment of the legislative history , the court first noted that

there could be no ce rtainty that the senator's understanding of the pr ivate right of

action reflected the entire Congre ss's view. Next , it n oted t hat, e ven if Senat or Hol lings ' remarks ac curately c aptured the congressional intent, his comments could also support the "opt-in" appr oach: "By stating his expectation that 'the States wil l act rea sonably in permitt

ing thei r citizens to go to cou rt to e nforce this bill ,' Sena tor Ho llin gs implies that states must act in anaffirmative

manner before the TCPA private damage c laim is cog ni zable in state court. In sum, we believe that Senator

Holl ings's remarks are of l imited in terpretive v alue." Chair King , 184 S.W.3d at 713.No. 2--08--1148

-22-

Turning to the "o

pt-out" approac

h, the Texas Supreme

Court dismis sed proponents' argume nts that the approach sufficiently considered supremacy

-clause and inefficiency

issues. The court dismissed supremacy-c lause c oncern s by noti ng that "givin g effect to th e ['if other wise'] proviso that C ongress created cannot run a foul of the supremacy

clause. Having concluded that Congre ss intended

the statutory

proviso to have some conditional effect, be it 'opt-out' or 'opt-in,' we failto see how supremacy clause concerns are implicat ed at all." Chair King , 184 S.W.3d at 715. The court f

ou nd it sign

ificant t hat Cong ress mad e the pri vate rig ht of act ion avail able excl

usively through state courts, noting that it was likely due to the millions of telema rketing calls made dai ly and because the locus of reg ulation wa s center

ed in the state s. The co

urt then f ound it re asonable to presume that Congress recognized the bur den on state courts that these claims could present and further that Cong

ress wou ld, in cons ideration of the po tential burde n on state court resources of a flood of TCPA litigation, c hoose to allow states to have a voice in the matter. Chair King , 184 S.W.3d at 715-16. Finally, noting tha t more than half the states had statutes restricting telemarketing when the TCPA was enacted, the court concl uded t hat th e TCP A's "remedies were meant to enhanc e the states' existing a ttempts toregulate unsolicited calls and faxes. *** There is strong evidence that Congre ss wanted to assist state regulation in reaching interstate communications if a state so desired,

no t to crea

te an independent regulatory framework for a potential flood of individual state-court lawsuits ." Chair King , 184 S.W.3d at 716. Havingrejected the "acknowledg ment" and "opt-out" app roach es, the Chair King court turne d to the "o

pt-in" in terpretation. Re lyin

g on the dictiona ry definitions of "ot

herwise " an d "permit," its reading of congressional intent, and its interpre tation o f th e TCPA's preemption language, th e c ou rt ad op te d t he "o pt -i n" ap pr oa ch . T he co ur t u se d t he di ct io na ry d efinitio ns toNo. 2--08--1148

-23-

conclude that the words " otherwis e permitt ed" suggested

"the ne cessity

of affir mative sta

te action to activate th e TCPA's priv ate cause of acti on." Chair King , 184 S .W.3d a t 716. The c ourt n ext concluded

that the c ongre ssional int

ent suppor

ted its "opt-in" reading of the statutory proviso, where the TCPA was intended to supp lement s tate regulation and where Cong ress was likely a

ware that state courts could become inundated with suits. Chair King , 1 84 S.W.3d at 716-17 (p

roviso "indicates deliberate deference to an a rea of u niquely state concer n"). Agr eeing t hat th e stat ute's most important purpose is to swiftly el i minate unsolicited facsimile advertising, the court noted, "[b]ut we believe Congress hinged the swiftness of the federal legislation on the willingne ss of states to bear the bu rden and cost of overseeing t hese claims ." Chair King , 184 S.W.3d at 71 7. Fi na ll y, the court reject ed an ar gument that t he TCP A's preemp tion langua ge would be r endere d meaning

less by an "opt-in" interpretation, stating that the statute' s language does not preempt state la ws imposing

more restrictive requirements or even prohibiting the use of telemar k eting e quipment (

47 U.S.C. §227( e) (200 0)), an d conc ludi ng: "Congr ess's intent to su

pplement state leg islatio n explains why the preemption conce rn would have focused on

more aggr

essive r egulat ion by the state s. [Citation. ] Congre ss clear ly did not intend

the TCPA to e stablish a

ceiling if states decided to be more

aggr essive in their approach, but it does not necessarily follow that Cong ress intended

the TCPA

to be a mandatory

floor for private enforcement whethe r or not a state chose to allow it. " Chair King , 184 S.W.3d at 718. The court ci

ted case law discu ssing fe deral pr eemption in fields t raditiona lly occupied by the

states and noted that there is an assumption that the states' historic police powers are notto be superseded by feder al statutes unless that is Congress's clear purpose. Chair King , 184 S.W.3d at 718.No. 2--08--1148

-24- 3. Parties' Arguments and Analy sis of the Emerging Approache s I nlight of

the fore going

backg round, we

turn to the

parties' argume nts i n this cas e . Defend ants urge us to follow Chair King , arguing that it is the most well reasoned and persuasive of the vari ous inter

pretations of the T CPA's " if otherw ise permitted" language. D efendants contend that First Cap ital Mortg age Cor p. v. Union

Feder al Bank of In dianapol is , 374 Ill. App. 3d 739 (2007), upon which Italia Foods relies, doe s not co ntrol be cause it did not directly a ddress the question here, as

the part ies in that case ag reed tha t the "a cknowle dgment" approac h should ap

ply to the cour

t's ana lys is and bec ause the

court did not addre ss Chair

King and the "opt-in" approach. Accordingly , defendants urge us to answer " yes" to the f irst certified question. Ital ia Foods co unters th at Chair King is poorly reasone d and inconsistent with jurisprudence concerning

state-court jurisdiction over federal statutory

claims. State courts of general jurisdiction

are presumed to have jurisdiction over federal statutory claims, and the presumption can be overcome only by

explicit statutory language, legislative history , or clear in compatib ility

between state-court

jurisdi ction and fe deral in terests. In I

talia Fo ods' vie

w, the TCPA 's "if

otherwis e permitted" language doe s not amount to an explicit statutory directiveand is, at most, am biguous

. It reasons that

any doubts con

cerning the mean ing of the phrase

should be resolved by

holding that

no specific enabling legislation is required. Ital ia Foods next arg ues that Chair King 's construction of the statutory lang

uage violates the tenth amendment and the I lli nois Constit ution bec ause it amounts to an attempt by Congr ess to dictate how Illinois should organize its courts. Addr essing the Illinois Constitu

tion, I talia Fo ods notes t

hat only courts in this state have the power to determine whether a matter is justiciable and within the subject matter jurisdiction of a circuit court. Bellevi lle Toyota, Inc. v. To yo ta Motor Sales, U.S.A., Inc. , 199 Ill. 2d 325, 335-36 (2002). Thus, enablingNo. 2--08--1148

-25-

legisla ti on could nev er be enacted in I llinois because it is beyond the Gene ral Assembly' s power. Fi na ll y, Italia Foods arg

ues that Chair King wrongly concluded that any

alternative construction of the "if othe

rwise pe rmitted" langua

ge woul d render it "dou bly redundant." Chair King , 184 S.W.3d at 713. Acc ordin g to Italia Foods, Congre ss routinely includes lang uage reflecting c onstitutional limitations on its pow ers in "an exer cise of cauti on" ( R.A. Ponte Archite cts , 38 2 Md . at 715, 857 A.2d a t 15-1 6) and it sh ould not b e cons trued to hav e any furth er mean ing. We find uncon vinci ng Chair King 's analy sis and conclude that the case is wrongly decided. The court' s textual analy sis and its r eview of th e legis lativ e history is unconvincing to rebut the presumptionof state-court jurisdiction. First, the c ourt failed to show that t

he TCPA' s proviso reflects Congress's "explicit statutory directive" ( Gulf Offshore , 453 U.S. at 478, 69 L. Ed. 2d at 791, 101 S. Ct. at 2875). Rather, the court merely determined that the "opt-in" approach w ould give full effect to the "if otherwis e permitt

ed" lan guag e and wou

ld not ren der it redundant. The court noted that Congress had elsewhere in th e statute used more succinct and unqualified langua ge to clarify that private claims ma

y be brough t in state c ourts and

conclude d that, by u sing the "if othe rwise permitted" qualification, Congre ss neces sarily intended something

differe nt, specifically, to g

ive the states a voice in the matter with respect to private actions under section 227(b)(3). We di sag ree . It has been noted: "[L]egislativebodies often refer to the pertinent constitutional princi ples un derlying legislation

even though such referenc es may not, strictly , be required. For example, when Congre ss enacts legislation under its Commerce Clause power, it will often refer to the underlying const

itutional principle or the constitutional provision. Legislation in the crimina l law field sometimes

will rec ite that it a

pplies onl y to offenses committed after the effectiveNo. 2--08--1148

-26-

date of the statute, even though constitutional ex post facto principle s would re quire the same result." R.A. Ponte

Archite cts , 382 Md. at 714, 857 A.2d at 15-16. We agree with the Mulherncourt tha t the "if otherwis e permitted " langua ge ref lects a congressionalintention "that Federal claims remain subject to State proce dural law: Congress is no doubtawar e of the Su

preme Cou

rt's lon g-stan ding re cogniti on that Sta tes 'ha ve gre at latitud

e to establish the struct ure and jurisdiction of their own courts' and ' may apply their own neutral procedural rules to federal claims, unless those rules are p re-e mpted by fede ral l aw.' [Citat ion.] The TCPAwas crafted to a

ccommoda

te State in terests, while respecting the structure, jurisdiction, and procedural rul es of State co urts." Mulhern , 441 Mass. at 757-58, 808 N.E.2d at 780-81. We also find persuasive the Court of Appeals of Mary land's reasoning that

the first part of the phrase "if otherwise permitt ed by the laws or rules o f court o f a State , bring i n an appr opriate court of that State" (coupled with the legislative history , which we address below) refers to "neutral general jurisdictional and procedural laws and rules governing each state' s court system." See R.A. Ponte Archite cts , 3 82 Md. at 711, 857 A.2d at 14. As that court explained, the word "otherwise" refers to state laws and rules other than substantive telemarketing laws (which are the subject of the TCPA), and the phrase "of court" reinf orces this interpretation. R.A. Ponte Archite cts , 382 Md. at 711, 85 7 A.2d at 14. Congress, thus, left to state legislators or courts to deter mine proper venu e (possibly in small-c laims cour

ts, which were the sponsor's preference) and not the issue whether the federal action should be en tertaine d in

state courts. R.A. Ponte

Archite cts , 382 Md. at 711, 857 A.2d at 14. We also find persuasive the Mary land court's reasoning that the re ference to "laws" doe s not

mean state law s regul ating te lemarke ting, be cause those laws w ere aime d at intra state communic ations, wherea s the TCPA ta rgets i nterstat e activit y. " The fed

eral sta tute was designedNo. 2--08--1148

-27-

to fill a vo id in state

laws; it was not intended to be a statute limited by state la ws which Cong

ress deemed inadequate. " R.A. Ponte Arc hitects , 382 Md. at 713-14, 857 A.2d at 15 (furthe r noting that, inmany states, state supreme courts do not have constitutional authority to promulgate rules of practice and proc edure) . In th is respe ct, we re

ject Chair King 's crit

icism that any rea

ding other than the "opt-in" ap

proach r enders t he phras e doubly

redunda nt. As to the legislative h

istory of the TCPA 's priva

te rig ht of action, we find Chair King 's analy sis thereof

even more pro blematic . The Texa s Supreme Court seize d upon Sena

tor Hollin gs' statement that he expected that the sta tes would act reasonably

and permit their citizens to go to court to enforce the bill. However, the Chair King court did not analy ze the con text in which the statement was made. Senator Hollings commented:

" 'Small claims court

or a similar court

would allow the consumer to appear before the court without an attorney . The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys'

costs to consumers of bringing an action wer e greater than the potential damage s. I th

us expect t

hat the Sta

tes will ac

t reasonably

inpermittin

g their citizens to

go to court to enforce this bill.' " R.A. Ponte Arc hitects , 382 Md. at 710-11, 857 A.2d at 13-14, quoting 137 Cong. Rec. 30821-22 (1991) (statement of Senator H ollings). It is clear from the context that the Senator, in the fina l sentenc e above , was re ferring to his

concern about attorney fees an d noting t hat acc ess to smal l-claims courts wo

uld permit

plaintiff s to avoid this burden. Thus, in our view, the Chair King court fa iled in its le gislativ e history analy sis to show that the "unm istakable i mplicati on" ( Gulf Offshore , 453 U.S. at 478, 69 L. Ed. 2d at 791, 101 S. Ct. at 2875) of the TCPA's legislative history is that the p resumptio n of state-courtNo. 2--08--1148

-28-

jurisdiction is rebutted. We believe the legisla tive histor

y r eflects a cong ressiona l intent to p ermit states to d etermine which of their co urts may hear TCPA

claims. Turning to Chair King 's supremacy -clause and efficiency concerns, we note that, in rejecting the "opt-out" approach, the court re ferred to the "explicit" statutory directive an d the T CPA's purpose. Chair King , 184 S.W.3d at 716. Here, again, the court' s analysis is unpersuasive a nd fails to rebut the presumption

of state-court

jurisdiction. The court dismissed supremacy -clause concerns by reasoni ng that g iving ef fect to the "cond

itional" proviso that Congress drafted could not run afoul of the supremacy

clause. Chair King , 184 S.W.3d at 715. This anal ysi s is proble

matic bec ause it presumes that Chair King 's rea ding of t he provis o is correct. As we determined above , contra ry to the Chair King court, the proviso is ambiguous. The Chair King court al so found it reasona ble to presume that Cong

ress recogni zed the bur

den on sta

te court s of TCPA c laims and t hat it cho se to allow the states to have control over their court dockets. Chair King , 184 S.W.3d a

t 715-16. I

n this respect, it concluded that the TCPA's rem edies were mean t to assist s tate reg

ulation " if a state

so desired, not to create an independent reg ulatory fra

mework for a potential flood ofindividual statecourt lawsuits." Chair King , 184 S.W.3d at 716. We fail to see how this int erpret ation nec essarily flows from t he sta tute's purpose a nd wordin

g. I n our view , it

is more plausible (especially in light of the statute's legislative history ) that Congress intended to assist state regulation by cr eati ng a p rivate right of action under the TCPA and not requiring a ny action on the states'

part s to permi t TCPAclaims tobe brought in their courts. We find the Chair King court' s arguments insufficient to rebut the presumption of state -court jurisdiction, as that intention must be "explicit," "unmistakable," or shown by " a clear incompat

ibility betwee n state-c ourt jurisdict ion and federal interests ." Gulf Offshore , 453 U.S. at 478, 69 L. Ed. 2d at 791, 101 S. Ct. at 2875.No. 2--08--1148

-29-

Fi na ll y, we are

unpersua ded by the Texas Su

preme Cou

rt's analy sis and ad

option of the "optin" approach. The court relied on the dictionar y de finitions o f "othe rwise" and "pe

rmit" in concludingthat they

sugge st "the necessity

of affir mative sta

te action to

activate the TCPA' s private

cause of action." Chair King , 184 S.W .3d at 7 16. We fai l to see how this conc lusion nec essarily resultsfrom terms that

mean " 'DI

FFERENTLY'

" and " 'ALLOW.' " Chair King , 184 S.W.3d at 716, quoting Webster's Third New I nternational Dict ionar y (1961). Further, we note that another criticis m of the " opt-in" approac h is t h at it might run afoul of the tenth amendment. I t has been noted that " r equiring states to 'opt-in' befor e they could he ar private damages actions under the TCPAwould be a

kin to Cong

ress com manding state leg

islature s to legi slate " ( Accounting Outsourcing , 329 F. Supp. 2d at 796). See also MLC Mort gage , 2009 OK 37, ¶14, 212 P.3d1199, 1205; Consumer Crusade , 121 P.3d at 353. Havingrejected Chair King 's rationale for adopting the "opt-in" approach, we conclude that the "acknowledgment" theor y is the correct approach to analy zing the TCPA's private right of action. Inlight of the ambiguity in the statutory lang

uage, we find gui dance, as note d above, in the legislative hist ory and th e stat ute's purpose. We also find that constitutional considerations warrant ad op ti on of

th e " ac kn ow le dg me nt " a pp ro ac h a nd no t t he "o pt -o ut " o r " op t- in " t he or y. The Howlett

Court stated that three corollaries follow from the proposition that federal law is the law of the land in the states: (1) when the parties and controversy are properly

before it, a

state court may not de ny a fed eral righ t in th e abs ence

of a v alid e

xc use; ( 2) "A

n exc use that is inconsistent with or violates federal law is not a valid excuse. The supr emacy clause f orbids sta te courts to dissociate themselves from federal law because of disagree

ment with its contentor a refusal to recognize the superiority or authority of its source "; and (3) the Court must act with caution beforeNo. 2--08--1148

10 The Court noted that only on three occasions had it found

a vali d exc use fo r a sta te cou rt's refusal to entertain a federal cause of a ction, each of which involved a neutral rule of judicial administration: first, whe re neither party was a resident of the forum; second, where the cause of actionarose outside the territori al juri sdiction; a nd third, w

here the Court allowed a sta

te court to apply the doctrine of forum non conveniens to bar adjudication of a Federal Employ

er Liability

Act case, so long as the doctrine was impartially enforced. Howlett , 496 U.S. at 374-75, 110 L. Ed. 2d at 325, 110 S. Ct. at 2442. -30- decidingthat a state court is obligated to entertain a claim w hen th e state's neutral rules of court administration obligat

e the cou rt to ref use jurisd iction; in other words, states have great latitude i n str ucturing their courts, establishing their jurisdiction, and apply ing their neutral procedural rules (unless those rules are preempted by federal law). 10 Howlett , 496 U.S. at 369-72, 110 L. Ed. 2d at 348-51, 110 S. Ct. at 2439-41. The Illinois Constitution provides that Illinois circuit courts have "or iginal jurisdiction of all justiciab le matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Gover nor to serve or resume office. Circuit Courts shall have such power to review administrative action as provided by law." (Emphasi s added.) Ill. Const. 1970 , art. VI , §9. Altho ugh the legisla ture ca n creat e new jus ticiable matters via legislation creating rights a nd duties with no common-law or equitable counterparts, any suchactions do not confer jurisdiction on the circuit courts. Bellevi lle Toy ota , 199 Ill. 2 d at 335. Rather, except in the area of administrative review, the circ uit court's jurisdiction is conferred by the constitution, not the legislature. Bellevi lle Toy ota , 1 99 Ill . 2 d a t 3 35 -3 6. "T he Ge ne ra l A ss em bl y, of course, has no power to enact legislat ion that wo uld contrav ene article VI." Bellevi lle Toy ota ,No. 2--08--1148

-31-

199 Ill. 2d at 335. Thus, our constitution precludes and would invalidate any legislative action purporting to "opt- in" or " opt-out" of the TCPA . Furthe rmore, it h a s been no ted that there is a tension betwee

n an inter pretation of the TC PA that re quires a state to pass enabling legislation ( i.e. , to "opt-in") before a priv ate act ion m ay be brough t in t hat st ate's courts and "the rule of presumed enforc eability

derived from the Su premacy Clause." Portuguese Amer ican L eadership Counci l , 956 A.2d at 6 76-77. It ha s been fu rther no ted that the presum ption of sta

te-cour t jurisdic tion is "compellingwhere, as u n der the TCPA, private litigants have no recourse to F ederal courts." Mulhern , 441 Mass. at 757, 808 N. E.2d at 780 . Fi nally , we noted above the tenth amendment

concerns in terms of

Congre ss "comma

nding sta te legi slatures

to legislate" ( Account

Outsourcing , 329 F. Supp. 2d at 796). As to the "opt-out" approach, the court in anothe r case has commented: "It would be an extreme anomaly , in the unusual situation where state co urts have appare ntly been given e xclusive jurisdiction over the federal cause of action, for Cong ress to have intended that states could discriminate against the federa l cause of action. ***

*** If Congress we

re to author ize such an unusual and unprecedented result, one would expect tha

t it would do

so express l y an d unequivocally. Absent suc h a clear congressionalstatement, the normal rule precluding state law discrimination against federal

causes of actio n should

apply." R.A. Ponte

Archite cts , 382 Md. at 715-16, 857 A.2d at 16- 17. See also Consumer Crusade , 121 P.3d at 354.No. 2--08--1148

-32-

This appr oach rais es supre macy -clause concer ns in that it

permits st

ates to c lose their

courts to federal claims for which Congress provided no federal forum. See Consumer Crusade , 121 P.3d at 354 (further noting that early cases failed to address this constitutional issue). Alth ough we agree with I talia Foods that the "acknowledgmen t " approach is the proper analytical framew ork, w e disa gr e e with its argument that we must follow First Capit al Mor tgage
. Ital ia Fo ods argues that the First Capit al Mor tgage court independently a nalyzed the issue and

a dopted the "ac knowledg ment" a pproach , that the

case is b inding pr

eceden t, and tha t, even if th e court did not expressly analy

ze the issue, the court's reference to the parties'

agree ment in tha

t case would be irrelevant because courts have an independent duty to c onsider their subject matter jurisdiction. In First Capit al Mor tgage , a mortg age c ompany sued a ba

nk, alleg ing that the bank s ent it hundreds of unsolicited

faxes for ov er two years. In the first count of its compl aint, the mo rtgage company sought to recover under the TCPA. Thetrial court granted the bank's motion to dismiss that count. 735 IL CS 5/2--619 (West 2004). On appeal, the parties agree d that the interpretation of the TCPA 's "if othe rwise permitted" language should follow the "a cknowledgment" theory . After noting that the "acknowledgment" the ory comported w ith the Supreme Court's reasoning in Howlett , 496 U.S. at 367-72, 110 L. Ed. 2d at 347-51, 110 S. Ct. at 2438-41 (addressing the supremacy clause), and that the TCPA expressly gra nts a private right of action, the First District held t hat the "if otherwi se permitted" language " allows state courts to apply ' neutral rule[s] of judicial administration '

" to TCPA claims and that, if the rules bar such claims, state courts may dismiss them. First

Capital Mortga ge , 374 Ill. App. 3d at 742, quoting Howlett , 496 U.S. at 374, 110 L. Ed. 2d at 352, 110 S. Ct. at 2442. The court further concluded that, bec ause no n eutral rule of judicial administrationNo. 2--08--1148

11 The TCPA's operative languag e is t he same with respect to suits to enforce prohibitions agains ttelephone solicitations and unsolicited advertisements via fax machine. Compare 4 7 U.S.C. §227(b)(3) (2000) with 47 U.S.C. §227(b)(1)(A) (2000). -33- barred the mortgage company

's TCPA claim agains t the ban k, reversal of the dismissal was warranted. First Capit al Mor tgage , 374 Ill. App. 3d at 742. First Capit al Mor tgage offers limited insight here because the parties in that case agreed that the "acknowledgment" a

pproach was the correct interpre tive framework. Further, other than noting that the approach comported with Howlett , the First Capit al Mor tgage court did not undertake any analy sis of the inte

rpretive theorie s that hav e develo ped, nor did it spec ifically

address Chair King

. We further note that we find of limited guidance the FCC's statement concerning the TCPA. Ital ia Foods arg ues that Chair King ignored the FCC's "interpre tation" of the TCPA. In 1992, the FCC adopted rules implementing the TCPA. In re Rules & Reg ulations Implementing the Telephone Consumer

Protection Act of 1991 , 7 F.C.C.R

. 8752 (1992) ( 1992 Repor t & Order ). In discussing the private

right of action un

der the s ta tute, theFCC s ta te d: "A bs en t s ta te la w t o t he co nt ra ry,

consumers may immediately file suit in state court if a caller violates the TC PA's prohibitions on the

use of automatic telephone dialing system[s] and artificial orprerec orded vo ice messa ges. §227(b)(3)." 11 1992 Report & Order , 7 F.C.C.R. at 8780; see also F.C.C. DA No. 03--153, par. 206 (June 26, 2003)(langu

age " sugge sts that Congress contemplated that [private actions were] a matter for con sumers to pursue in appropriate state courts, subject to those courts' r ules"). Italia F oods argues that Congress has not altered the statute's lang uage since the FCC's statement and notes that the Chair King court did not consider the FCC 's p ron oun cem ent . In its view, as courts are requiredNo. 2--08--1148

-34-

to defer to agencies'

reasonable interpretations of fe deral s tatutes, t he FCC' s stateme

nt in its 1992 Report & Order

is bi ndin g. Inreaching our decision, we note that the FCC's pronouncement, although or dinarily entitled to some deference ( ChevronU.S.A. Inc. v. Natural Resourc es Defense Council, Inc

. , 467 U.S. 837, 844, 81 L. Ed. 2d 694, 704, 104 S. Ct. 2778, 2782 (1984)), offers limited g uidance because the FCC did not directly addre ss the issue here. Insummary

, we answ er th e first cer

tified question in the negative. The I llinois General Assembly need not enact enabling leg islation befo re private TCPA claims can be brought and enforc ed in I llinois sta

te court s. B. Penalties/Assignability/L imitations Period The second certified question a sks: "Ar e the TCPA claims alleged in this case 'statutory penaltie s' under I

llinois law ? And if so: (a ) Are tho se claims

assignable under Illinois law? [and] (b) Does Illinois' two[-]y

ear statutory pe

nalty limitation s per iod [(735 ILCS 5/13--202 (West 2002))] apply to such claims, as opposed to [the federal four-y ear limitations period f

or civil act ions (28 U.S.C. §1658 (200 0))]? " These issues, as parts of a certified question, prese nt questions of law that we review de novo

. Barbara's Sales, I nc. v. Intel Corp. , 227 Ill. 2d 45, 57-58 (2007). Prelimina rily , we note

that the f irst two parts of the second certified question are inartful ly drafted, in that they appea r to confuse several

legal t heories or conce pts. I n essenc e, the pa

rties ask

us to resolve

whether the TCPA c laim here

was assig

nable; sp ecifica

lly, whether

Eclipse properl y assigned its TCPA cla

imto Hinman. Courts have taken two approaches in addressing this issue. The first approach, which is the essential question in the first part of the second c ertified question, asks whether

the statut

e is a penal (as op

posed to r

emedial) enactme nt. Gene rally , if a statute i sNo. 2--08--1148

-35-

penal, claims thereunder are not assignable , because they are personal rights. See, e.g. , Hart Conversions, Inc. v. Pyramid Seating Co. , 658 N.E.2d 129, 131 (Ind. App. 1995) (" The gener al rule is th at th e r ig ht to co ll ec t a pe na lt y is a personal right which is not assignable") ; see also North Chica go Street R.R. Co. v. Ackley , 171 Ill. 100, 117 (1897) ( inreviewing common law, noting that persona l-in

jury actions are not assignable). The sec ond approach, which is the primary question raised in subpart (a) of the second certified question, asks whe ther recovery

under the statute i s personal to th e i nj ur ed pa rt y. This question is relevant because the only causes of a ction that are not assigna ble in Illinois are personal-injury and related actions. Kleinwort , 181 I ll. 2d at 225. Either approach can prov ide an ind

epende nt basis up on whic h t o determ ine whether a TCPA

claim is assignable. Because current Illinois law doe s not favor one app roach ov er the ot

her and b ecause

it is notclear to

us that our

supreme court wo uld choose

one appr oach ove r the othe r, we ad dress bot h approac hes. 1. Penal v . Remedia l Statute The trial court found

that the TCPA presumes damages for economic injury that are difficul t to quantify and, ther

efore, the statute is remedial and not pen al. The cou rt found Valle y Forge Insurance Co. v. Swiderski Electronics, Inc. , 223 Ill. 2d 352 (2006), instructive and further found that the TCPA implicates privacy and pr operty intere sts and that property intere sts are assignable. Finally, the cour

t relied on the rule that claims are gene rally assig

nable. Relying on the test in McDon ald's Corp. v. Levine , 108 I ll. App. 3d 732 (1982 ), defe

ndants argue that, in light of the TCPA's silence on assignability , we must look to Illinois law, w hich provides that TCPA c laims are

statutory penaltie s and that

such penalty

claims are not

assignable. In McDon ald's , this court stated:No. 2--08--1148

-36- "A statute is a statutory penalty

if [(1)] it imposes automatic liability for a violation of its terms and [(2)] the amount of liability is predetermined by the act and [(3) that

liability is] imposed wi

thout act ual dama ges suf fered by th e plaintif

f. [Citation .] A statute is remedial when it gives

rise to a c ause of a

ction to re cover c ompensat ion suffe red by th e injured person. [Citation.] *** [A] statute is remedial and not penal where it imposes liabili ty on ly w he n a ct ua l d am ag e r es ul ts fr om a v io la ti on . In su ch a c as e, li ab il it y i s contingent

upondamage being proven by the plaintiff. Under a penal statute, liability is not cont ingent but imposed automatically when a violation of the statute is established." McDon ald's , 108 Ill. App. 3d at 738. This court fu

rther sta ted: "A s tatute re quiring

the pay ment of a ctual a nd pu nitive damages by a wrongdoer does n ot consti tute a stat utory penalty." McDon ald's , 108 Ill. App. 3d at 739 (holding that section 14--6 of the Eavesdropping Act, which lists three civil remedies available for violations thereunder--injunctive relief and ac tual and punitive damages--is not a statutory pena

lty). The TCPA provides that a plaintiff may bring an action: (1) for an injunction; (2) for "an actionto recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater" ; or (3) both an i njunction and the greater of the actual damages amount or $500 per violation. 47 U.S.C. §227(b)(3) (2000). Further, a court has discr etion to treble the $500 amount in cases where it finds that the defendant willfully or knowingly violate d the statute or

regula tions. 47 U .S.C. §227(

b)(3) ( 2000). I

n its third ame

nded comp laint, I

talia Foods sought injunctive relief and $500 in damages for each violation. Here, defenda

nts arg ue that th e moneta

ry relief I talia Fo ods seeks --$500 in damage s pe r violation--constitutes a statutor y pe nalty because itis not intended to compensate plaintiffs for anyNo. 2--08--1148

-37-

actual damages incurred from the " pennies" they may have lost from a

single uns olicited f

ax. Further, they

contend t hat the TC PA's $50 0 damag es awar d requir es n o proo f of

act ual in ju ry. In defenda nts' view, I

talia Fo ods' ab ility

to potentia

ll y recove r actua l damag es for a

lleged TCPA violations does not preclude app lication of the TCPA's preset $500 damages award for each unsol icite d fax. We disagr

ee with defenda nts' argume

nt that McDon ald's controls . That ca se provid es little interpretive assistance here because its test is not eas ily ap plied to a statute like the TCPA, which contains both a prov isio n for ac tual d amage s and a statut ory penalty component. We also find defendant's reliance on Land is v. Marc Realty, L.L .C. , 235 Ill. 2d 1 (2009), to be misplaced. That case in volv ed a pro visi on in Chica go's landlord and tenant ordinance, and the issue presented wa s whether the provisionimposed

a statutory pena

lty for the purposes of

the two-yea

r limitations period insection 13--202 of the Code of Civil Procedure (735 IL CS 5/13--202 (West 2004 )). The s upreme court, apply

in g the McDon ald's test, held that the provision was a penalty because it imposed automatic liability for violations thereunder, se t forth a predet er mined amount of damages, and imposed liability rega

rdless of the plaintiffs' actual damag es. Land is , 235 Ill. 2d at

13. We conclude that Land is does not

compel a conclusi on here t

hat the TC PA is penal, because, in assessing the final prong of the McDon ald's test ( i.e. , that the penalty is imposed without reg ard to the actual damages suffered by the plaintiff), the supre me court noted tha t, in contr ast to other provisions of the landlord and tenant ordinance, the provision at issue "does not

specifically a

llow a plaintiff to recover actual damages." Land

is , 235 I ll. 2d at 14 . Signifi cantly, th e TCPA prov ides that o ption. 47 U .S.C. §227(b)(3)(B) (2000).No. 2--08--1148

-38-

We find Scott v. Ass'n for Childbirth at Home, International , 88 Ill. 2d 279 (1981), instructive. In Scott , the supre me court , in the context of ad dressing a due pro cess ar

gument, held that the Fraud Act was not penal. Scot t , 88 Ill. 2 d at 288. T he court noted tha

t the statu te "is a regulatory

and reme dial ena

ctment int

ended to curb a variety of

fraudulent abuses and to provide a remedy to individuals injured by them. *** The [Fraud] Act is clearly within the class of remedial statutes which are designed to gra nt remedies for t

he prote ctio n of rights, introduce regulation conducive to the publ ic good , or cure public evils." Scott , 88 Ill. 2d at 288. The court found that the fact that the Fraud Act contains a civil penalty component does not render it a penal statute. Scott , 88 Ill. 2d at 288. The supreme court state d that "the penalty is but one part of

the regulatory

scheme, intended as a supplemental aid to enforcement rather than as a punitiv e measure." Scott , 88 Ill. 2d at 288. We find

the Scott court' s analy

sis and characte

rization of

the civil penalty provision in the Fraud Act persuasive in analy

zing the TCPA. The Fraud Act provides that a plaintiff may bring an actionfor actual damages(815 IL CS 505/10a (West 2008)) and that the At torne y General o r a Sta te's Attorney may bring

an action seeking an

injunction , restitut

ion, or a c ivil pena

lty ( 815 I LCS 505 /7 (West 2008)). S imilarly

, the TCPA

provides that a plaintiff may bring an action for injunctive relief and/or the greater of actual

damage s or $500 per violation; it also contains a treble-damages provision. 47 U.S.C. §227(b)(3) (2000). Further, another portion of the statute contains a federal enforcement

component that authorizes state attorney s general to bring civil actions in federal court

onbehalf of their r esidents to obtain in

junctive relief a nd to recover monetary

damages; in addition, the FCC may intervene

in any such action. 47 U.S.C. §227(f)(1), (f)(3) (2000).No. 2--08--1148

-39-

We are further persuaded by the fact that

it appears that the majority of courts to consider

the issue have concluded that

the TCPA is a remedial statute, at least in part on the basis, as did the Scott court ( Scott , 88 I ll. 2d at 288), t hat the sta tute's p urpose ( discerned in par

t from a r eading of its l egislative history) warr

ants this result. See, e.g. , Mo to ri st s M ut ua l In su ra nc e C o. v. Da nd y- Jim , Inc. , 182 Ohio App. 3d 311, 322 -23, 2009 --Ohio- -2270, ¶¶ 35, 36 (ho lding tha

t TCPA is a remedial law because the purpose of the statutory damages provision is to liquidate uncertain actual damages and to encourage victims to bring suit; damage s are set at fair amo unt; trebl e-dama

ges provision is notpunitive, because it is imposed irrespe ctive of an y in tent to viol ate the la

w); Penzer v. Tra nsportationInsurance Co. , 545 F.3d 1303, 1311 (11th Cir. 2008) (citing cases and no ting tha t TCPA 's statutory damag es provisionis not puniti ve); Terra Nova Insurance

Co. v. Fray- Witzer , 449 Mass. 406, 869 N.E.2d 565, 575 (2007) (applying New Jersey law

and holdin

g that th e TCPA is a remedial statute, where Congress's purpose was to protect fax machi ne owners from unsolicited adverti sementsand wher e the statut ory damag es remedy flows to the consumer and not the gover nment; possibility that

statutory damag es could be greater than actual harm suffered does not transform TCPA into a penal statute, as this wou ld ignor e nature of penal statute a nd would conflict with New Jersey' s mandate to liberally interpr et insurance policies in favor of the ins ured); Melrose Hotel Co. v. St. Paul Fire & Marine Insura nce Co. , 432 F. Supp. 2d

488, 509 n.10 (E.D. Penn. 2006), aff'd sub nom. Subclass2 v. Melrose Hotel Co. , 503 F.3d 339 (3d Cir . 2007); Universal Underwriters Insurance Co. v. Lou Fusz Automotive Network, Inc. , 401 F.3d 876, 881 (8th Cir. 2005) (holding that fixed dama

ges aw ard prov

ides ince ntive for private parties to enforce TCPA: "Whether we view the fixed awa

rd as a liq uidated s um for actual h arm or an incen tive for aggrieved pa rties to act as private attorneys g eneral, or

both, it is clear that the fixed amount serves more than purely punitiveNo. 2--08--1148

12 But see United States Fax Law Center, I nc. , 476 F.3d

at 1120 (h

olding that TCPA cla

ims

are not assignable under Colorado law because they are in the nature of personal-injury privacy claims and declining to address whether TCPA claims are unassignable because they are penal). -40- or deter rent go als. Also, the f

act that C ongre ss electe d to make t reble damage s availa

ble sepa rate fromfixed damages strongly suggests that the fixed damages serve additional goals other than deterrenceand punish

ment"); Hooters of Augusta, I nc. v. Amer ican Global Insurance Co. , 272 F. Supp. 2d 1365, 1375-76 (S.D. Ga. 2003) (TCPA is a remedial statute, where it redres ses harm s to individual fax machine owners who are harmed by the receipt of

unsolicited advertisements, where the damage s issue tothe individual and not to a third party, and w here, although statutory da mages do not closely corre spond to actual damage s, this fac t does not c onvert a

remedial statute to a penal one), aff'd , 157 Fed . Appx. 201 ( 11th Cir. 20 05); Western Ri m Inve stment A dv isors, I nc. v. Gul f Insurance Co. , 269 F. Supp. 2d 836, 849 (N.D. Tex. 2003). But see Kruse v. McKenna , 178 P.3d 1198, 120 0-01 (Colo. 2008) (holding that state law determines matter of assig nability and furthe

r holding that, under Colorado law, TCPA claims are penal and, therefore, not a ssignable, because the TCPAcreated a new and distinct cause of a ction, the monetary r

ecove r y sought re quires no proof of actual damages, and any

recovery exceeds any a

ctual damages); 12 Kaplan , 266 A.D.2d at 849, 698 N.Y.S.2d at 799 (TC PA's sta

tutory damage s provision is punitive rather than compensatory, w

here the legisla

tive histor y shows that the statute

was intended to provide a remedy to consumers and

to

encou rage them to sue; statutory penalty provides incentive for

consumers to enfor

ce statu te; pena lty need not be measured by

actual loss incur

red whe re it is imposed as a punishment for a violation).No. 2--08--1148

-41-

Insummary, we c onclude that the TCPA is a remedial statute and, given that defe ndants have notadvanced an argument that cla ims under remedial statutes are unassignable, we decline to hold that TCPA c laims are

not assig nable by virtue of being r emedial. 2. Whether

the TCPA Cla

im Here i s a Personal-I

njury Claim and is, Th erefor

e, Not Ass ignable Next, defenda

nts arg ue that th e TCPA cla

im, even if not penal, is not assigna ble. Def endants address the trial court's rationale, where, relying on Valley

Forge and Kleinwort , it found t hat TCPA claims are assignable. In Kleinwort , Kleinwort s ued Quantum and Quantum counterclaimed, assertin g common-law fraud and seeking punitive damages in conne ction with the sale of a bro kerage firm. During the pendency of the liti gation, Quantum a ssigned its i nterest i n the laws

uit to its two

shareho lders. Kleinwort

challen ged the shareho lders'standing

to pursue the punitive damages claim. The supr eme court hel d that the assignees could recover punitive dama ges on the common-law fraud counter claim

. Kleinwort , 181 Ill. 2d at

226. The c ourt note d that, traditionally , courts e xamined the

assigna bility issue by considering whether the action would survive the de ath of the owner. Kleinwort , 181 Ill. 2d at 220. The supreme court rejected this approac

h, conclu ding tha t the "pr imary " consid

eration in determining the assignability of c auses of action is whether such assi gnments

would viola

te public po li cy. Kleinwort , 181 Ill. 2d at 224 ("[t]his court has held that a cause of action cannot be assig ned if suchas si gn me nt vi ol at es pu bl ic po li cy, even if s uch an a ction wou ld otherw ise surviv e the dea

th of the owner" ). The court criti cized the su rviva l anal ogy, noti ng: "This court long ago used the survival ana logy whe n consideringwhether a

cause of action is assignable, not whether punitive damage s standing alone are assignable. This court hasNo. 2--08--1148

-42-

notapplied

the survival analogy

to invalidate part of an

assignment where the parties sought an assignment of the entir e action." Kleinwort , 181 Ill. 2d at 224. The court further noted that "assignability is the rule and nonassignability is the exception." Kleinwort , 181 Ill. 2d at 225. I t stated that, in Illinois, "the only caus es of action that are not assigna ble are torts for personal injuries and actions for other wrongs of a persona l nature, such as those that involv e the re

putation or feelin

gs o f the inju

red party." Kleinwort , 181 Ill. 2d at 225. After further noting that

the issue depends on the facts and circumstances of the case and that c ourts apply a strict t est i n determining whether an assignment violates public policy , the court held that allowing the assignees to seek punitive damages did not violate public policy

. Kleinwort , 181 I ll. 2d at 226. The court found significant that theassigne es were Quantum' s shareholders a t the time of the alleged fraud, that one shareholder-assignee was intimately involved in the negotiations for the purchas e of an e

ntity that serv ed as the

basis for the alle ged

fraud, that the assignees did not "shop around" for the fraud claim, and that the sa me defendants would be involved regar dless of the assignment. Kleinwort , 181 Ill. 2d at 226-27. Defend ants arg ue that Kleinwort

is inapposite. They do not dispute that punitive damages that are part of an underly

ing claim, which defendants refer to as "ancillary

punitive damages," are assignable. Instead, defenda nts urge that "independent statutory penalties," such as those under the TCPA, are not assignable because the y are pe rsonal to the injured party . In their view , a party's act ions un derlying

TCPA claims should constitute the sort of personal injury contemplate d by Kleinwort

as being unassignable, and public policy conce rn s should act to bar Eclipse's alleged assignment of its TCPA claim to Hinman.No. 2--08--1148

-43-

Ital ia Foods preliminarily re spo n ds that the assignment issue is of no import because the statute of limitations has been tolled (a reference to the third

certified question) in this case since the filing of the initial complaint in June 2003. We reject Italia Foods' a rgument that, if we adopt the ir tolling argument, we need not address the assignment issue. The status of Hinman as an assignee of Eclipse' s claim g oes to his s tanding to bring su

it. Standing , which is a

jurisdict ional re quireme

nt, must be continuous throughout the suit. Eclipse Manufacturing Co. v. M&M Rental Center, Inc. , 521 F. Supp. 2d 739, 742 (N.D. Ill. 2007). Next, Italia Foods responds that def endants are incorre ct as to the assig nment issue . Ita

lia Foods relies on Kleinwort and the pr

inciple that corporations have the power to sell, convey , pledge, lease, and other

wise dispo se of their property and assets. See 805 ILCS 5/3.10 (West 2008) (listing the general powers of a

corporation); see also Grunloh v. Effingham Equity , Inc. , 174 Ill. App. 3d 508, 518 (1998 ) ("it

has long been recognized that cor porations generally

possess the power t o assi gn choses in action, provided the assignments are made for a leg itimate corporate purpose and violate

no express restrictions in the corporate charter" ). Italia Foods arg ues that, as in Kleinwort , Hinman is not a stranger to the underly ing claim, as he was the sole sha rehol der and p

residen t of Eclip se when defenda nts sent the

unsolicite d fax adve

rtisemen ts that g ave rise

to the TCPA claim. Also, as in Kleinwort , the "a ssignme nt" was t he produ ct of the sale of the corporation after litigation had commenced. Thus, in Italia Foods' view , Eclipse's "assignment" of its TCPA claim

to Hinman d

id notviolate public policy, beca use Hinman

owned an d ran Ec lipse at the time the claim arose and was intimately

involved i

n it. In Val ley Forge , upon which the trial court relied, the supreme court addre ssed whet he r TCPAclaims were covered by the advertising-injury

provisions in commercial and general liabilityNo. 2--08--1148

-44-

insurance policies. The primary policy at issue defined a

n advertising injury

as: " '[O]ral, written, televised or videotaped publication of material that violates a person' s right of privac y.' " Valley Forge , 223 Ill. 2d

at 364. The underly

ing complaint did not assert a common-law tort for invasion of privacy, but asse

rted a TCPA claim. The court held that the insurer had a duty to defend the TCPA claim under the policy' s definiti on of adv ertising injury because the TCPA c laim vindic ated the same injuries as a common-law action for violation of privacy. Valle y Forge , 223 Ill. 2d at 365. The court noted that the " receip t of an uns olicit ed fax advert isement implicates a person's right of privac y insofar as it violates a person's secl usion, and

such a vio lation is one of the i njuries that a

TCPA faxad claim is i ntended to v indicate." Valle y Forge , 223 Ill. 2d a t 365 (citi ng "ov erwhelm

ing" c ase law). As to the specific policy language in the case, the

court, relying

on the dictionary def

initions of, inter alia , "right of privacy," further held that the terms refer to both an interest in seclusion and

aninterest in the secrecy

of personal information. Valle y Forge , 223 Ill. 2d at 368. Accordingly , the court concluded that unsolicited fax advertisements fall within the category of material that

violates

a person's seclusion. Valle y Forge , 223 Ill. 2d at 3 68. Th e court determ ined t hat, gi ven it s hol ding, it did not nee d to reac

h the issue

whether the insur ers had a duty to defen d their insured p ursuant t o the policies' property

-damage provisions. Valle y Forge , 223 Ill. 2d at 379. We find Valle y Forge distinguishable. That case involved adv ertising -injury provision s in insurance policies held by an individ

ual and not a corporation, a nd the cou

rt did not add ress

as si gn ab il it y. The court de termined only that TCPA

claims vindicate the same injuries as invasionof-privacy

claims and, therefore, unsolicited fax adver tisements implicate a p er so n' s r ig ht to pr iv ac y. Valle y Forge , 223 Ill. 2d at 365-68.No. 2--08--1148

-45-

We find Eclipse

instructive. In Eclipse , which involved the same plaintiffs as this case but

a different defendant, the court held that Hinman h ad standing as an ass ignee t o purs ue Ecl ipse's TCPAclaim and it granted Hinm an's an d Italia Foods ' moti on for leave to file a second amended class action c omplaint na ming the m as plaint

iffs. The court re viewed c orporat

io n law a nd noted Kleinwort 's statement

that only torts for persona l injuries and

actions for other wrongs of a personal nature are unassignable and noted that the re levant inquiry was whe ther TCPA claims ar e actions for personal injuries. Eclipse , 521 F. Su pp. 2d at 7 43. The c ourt conc luded tha t the TCPA is

partly intended to protect privacy

interests. Eclipse , 521 F. Supp. 2d at 743. The court noted that a privacy tortis a personal-injury a

ctionbecause the right protected is a personal right. Eclipse , 521 F. Supp. 2d at 743. However, the court also determined tha t a co rporation "has no cause of action for invasion of

privacy other tha n intrusion s upon the u se of its own n ame or identi ty." Eclipse , 521 F. Supp. 2d at 743. It held that corporations bringing TCPA claims may asse rt only the propert

y interest s the TCPA was designed to protect and, therefor e, their TCPA claims are assigna ble under Illinois law. Eclipse , 521 F. Supp. 2d at 743-44; see also Kleinwort , 181 Ill. 2d at 225 (o nl y torts for personal injuries and actions for other wrongs of a personal nature are unassig nable). The court noted that Valle y Forge did

not foreclose the court's holding because that case did not reach the issue whether a corpor ation had standing to assert privacy

interests under the TCPA; rather, Valle y Forge involved an individ

ual doing business a s a priva

te investigation business, and the su preme c ourt's holding was that T CPA claims i mplic ate " a perso n's right to privacy " (emphasis added) (Valley Forge , 223 Ill. 2d at 365). Eclipse , 521 F. Supp. 2d at 743-44. We conclude, as did the Eclipse court, that

Eclipse could and

did assig n its TCPA cl aim to Hinman. As the Kleinwort court not ed, assig nability is the rule, not the exception, and is determinedNo. 2--08--1148

13 Inso concluding, we express no opinion herein on the me aning of

"pri vacy" in t he context of insurance coverage

law. -46- primaril y by considering

public policy issues, not the survival analogy

. Kleinwort , 181 Ill. 2d at 224- 25. Kleinwort

also cle arly

states that the only

unassig nable cl aims are

those invo lving pe

rsonalinjury torts and other claims asserting personal wrong s. Kleinwort , 181 Ill. 2d at 225. We find persuasive the Eclipse

court's analy sis and its conclusion that corporations may as sert in TCPA claims only

the prope

rty and not the

privacy interest s the TCPA w as desig ned to protect . Se e Eclipse , 521 F. Supp. 2d at 743-44 ; see also Resource Bankshares Corp. v. St. Paul Mercury Insurance Co. , 40 7 F. 3d 6 31, 639 (4t h Cir . 20 05) ("J

u nk faxes cause some economic damage" ); American States Insurance

Co. v. Capital Associates of Jackson County, I nc. , 392 F.3d

939, 943 ( 7th Cir. 2004) (T CPA protec

ts company

's prop erty

rights in that i t avoi ds con sump tion of the recipi ent's ink and paper). Accordingly we conclude that a corporation's, like Ec lipse's, TCPA claims are assignable. Insu mm ar y, we conclude that the TCPA claim herewas prop erly assigne d from Ec lipse to Hinman. 13 3. Statute of Limitations Becau se the TCPA claim in this case was assignable and, as we de termine below, t he limitations period is

measured to the initial filing of Eclipse's complaint in 2003, we conclude that

we need not address the question of the ap propria te statute of limitati ons prese

nted in this portion of the second certified question. Whether the two-y

ear or f our-y ear limita tions per iod applie s need no t be reso lved. Ec lipse filed its initial complaint on June 13, 200 3, and all eged that defe ndants sent it four unsolicited faxNo. 2--08--1148

-47-

adverti sementsin Ju ly and Aug ust2002, or a

bout one y

ear ea rlier. We disagr ee with de fendant s, who assert without explanation that we must resolve the issue of the appropriate statute of limitations and determine if the limitations period for the initial complaint goes back two y

ears under section 13--202 of the Cod

e of Civil Procedu re to June 13, 200 1, or four ye ars unde

r section 1658 of Ti

tle 28 of t he U ni ted St ate s C ode to Ju ne 1 3, 1 999 . It is clear to us that, under either limitations period, the complaint was timely filed. C. Tolling of Claim The third certified questions asks: "If the claim is n ot assig

nable, then should a

bsent cla ss members' putative claims against defendants be treated as tolled whe

n no class repres entative

with proper standing represented the putative class for a 27-month period?" Because we determined above tha t the TCPA c laim is assignable, we need not address the third c ertified question. IV. CONCL

USION For the foregoing r

easons, we answer the first certified que stion in the negative. As to the second certified question, we modify the first two parts of

the quest ion and conclude that the TCPA claim here is remedial and assignable and, a lternatively, that (whe

ther or not it is reme dial) it is assigna ble because it does not constitute a personal-injury a

ction. Further, we conclude that we nee d notan s wer subsection (b) of the second certified que stion (concerning the appropriate statute of limitations ) and the third certified question. We remand the cause for further proceedings consistent with this opinion. Certified questions answered; cause remanded. O'MALL EY and SCHOSTOK, JJ., concur.