IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60027

TELTECH SYSTEMS, INCORPORATED; WONDERLAND RENTALS,

INCORPORATED; MEIR COHEN,

Plaintiffs - Appellees

v.

PHIL BRYANT, in His Official Capacity as Governor of the State of

Mississippi; JIM HOOD, in His Official Capacity as Attorney General of the

State of Mississippi, 

Defendants - Appellants

Appeal from the United States District Court

for the Southern District of Mississippi

Before KING, SMITH, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Defendants-Appellants Phil Bryant, Governor of Mississippi, and Jim

Hood, its Attorney General (Defendants), contest a summary judgment’s holding

the Mississippi Caller ID Anti-Spoofing Act, MISS. CODE ANN. § 77-3-805,

violates the Commerce Clause, U.S. CONST. art. I § 8, cl. 3. Also at issue is

whether the Act: (1) is conflict-preempted by the Truth in Caller ID Act of 2009,

47 U.S.C. § 227(e); and (2) comports with the First Amendment. The judgment

is upheld on a preemption basis. AFFIRMED.

United States Court of Appeals

Fifth Circuit

F I L E D

December 10, 2012

Lyle W. Cayce

Clerk

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I.

“Spoofing” is misrepresenting the originating telephone caller’s

identification (caller ID) to the call recipient. The practice has both improper

and legitimate applications. 

In early 2010, Mississippi enacted the Caller ID Anti-Spoofing Act (ASA).

Consistent with ASA violations’ being subject to penalties and remedies under

Title 75, Chapter 24 (Regulation of Business for Consumer Protection), MISS.

CODE ANN. § 77-3-809(2), Defendants contend the Act is to prevent fraudulent

and criminal activity and to protect consumers. Under it, 

[a] person may not enter or cause to be entered false

information into a telephone caller identification

system with the intent to deceive, defraud or mislead

the recipient of a call [and a] person may not place a

call knowing that false information was entered into

the telephone caller identification system with the

intent to deceive, defraud or mislead the recipient of the

call. 

MISS. CODE ANN. § 77-3-805 (emphasis added). ASA violators commit a

misdemeanor, and are subject to a fine and imprisonment. MISS.CODE ANN. § 77-

3-809(1).

Later that year, the Telephone Consumer Protection Act of 1991 (TCPA)

(codified at 47 U.S.C. § 227) was amended by the Truth in Caller ID Act of 2009

(TCIA) (codified entirely within 47 U.S.C. § 227(e)). TCIA provides:

It shall be unlawful for any person within the United

States, in connection with any telecommunications

service or [Internet protocol]-enabled voice service, to

cause any caller identification service to knowingly

transmit misleading or inaccurate caller identification

information with the intent to defraud, cause harm, or

wrongfully obtain anything of value . . . . 

47 U.S.C. § 227(e)(1) (emphasis added). TCIA violators are subject to civil and

criminal liability. 47 U.S.C. § 227(e)(5). Jointly, TCIA and TCPA provide a

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private right of action, grant enforcement powers in both federal and state

governments, grant intervenor rights to the Federal Communications

Commission (FCC), and vest district courts with exclusive jurisdiction over

claims under 47 U.S.C. § 227(e)(1). 47 U.S.C. § 227(e)(6), (g)(1)-(3).

ASA is more restrictive than TCIA. On the one hand, spoofing done with

“intent to defraud, cause harm, or wrongfully obtain anything of value” (harmful

spoofing), in violation of TCIA, is also violative of ASA. On the other hand,

spoofing done without such intent, but “with the intent to deceive . . . or mislead

the recipient of the call” (non-harmful spoofing), violates only ASA. 

Plaintiffs-Appellees New Jersey-based Teltech Systems, Inc. (of which

plaintiff Meir Cohen is president), and Michigan-basedWonderland Rentals, Inc.

(Plaintiffs), provide nationwide third-party spoofing services to individuals and

entities. Teltech offers its customers the SpoofCard, which operates like a longdistance calling card and gives its holder the ability to manipulate the caller ID

displayed to the called party. Wonderland uses spoofing to conduct “mystery

shopping”, by which Wonderland representatives, posing as customers, interact

with its clients’ customer-service departments to conduct quality control and

gauge performance.

In district court, Plaintiffs challenged ASA on three bases: (1) conflict

preemption; (2) the dormant Commerce Clause; and (3) the First Amendment.

Teltech Sys., Inc. v. Barbour, 866 F. Supp. 2d 571 (S.D. Miss. 2011). Following

cross-motions for summary judgment, the district court, applying Healy v. Beer

Institute, Inc., 491 U.S. 324 (1989), held ASA violated the dormant Commerce

Clause because it had the “practical effect of regulating commerce occurring

wholly outside [Mississippi]”. Teltech Sys., 866 F. Supp. 2d at 577 (internal

citation and quotation marks omitted). On the other hand, the court held no

conflict preemption because: compliance with both statutes was not physically

impossible; and Plaintiffs failed to show ASA constituted an obstacle to the

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accomplishment of a federal objective. Id. at 574-75. The First Amendment

claim was not reached. Id. at 577 n.5.

II.

A summary judgment is reviewed de novo. E.g., In re Tex. Wyo. Drilling,

Inc., 647 F.3d 547, 550 (5th Cir. 2011). Summary judgment is proper when

“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law”. FED. R. CIV. P. 56(a). Pursuant to the crossmotions for summary judgment, there is no genuine dispute of material fact; at

hand are only questions of law, which include statutory construction.

At issue are whether: TCIA preempts ASA; and ASA violates the dormant

Commerce Clause and the First Amendment. In that regard, Plaintiffs press the

challenges to ASA they raised in district court. Having received a favorable

judgment, and not seeking to alter or modify it, Plaintiffs were not required to

cross-appeal, even though they contest the district court’s no-preemption ruling.

Cf. Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996) (reversal of plaintiff-appellee’s

summary-judgment denial an impermissible alteration or modification of

judgment when plaintiff-appellee did not cross-appeal). In other words, having

prevailed in district court on their dormant Commerce Clause challenge,

Plaintiffs were not required to cross-appeal to urge here the preemption and

First Amendment claims they raised there, because ASA’s invalidation on an

alternative theory would not “enlarge the rights of the appellee or diminish the

rights of the appellant”. Borrego Springs Bank, N.A. v. Skuna River Lumber,

LLC, 564 F.3d 353, 356 (5th Cir. 2009). No authority need be cited for our being

able to review the issues raised here by Plaintiffs in the light of their having

raised them in district court.

It goes without saying that constitutional questions should be avoided if

there are independent “ground[s] upon which the case may be disposed of”.

Ashwander v. TVA, 297 U.S. 288, 347 (1936). Because we hold ASA is conflict4

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preempted by TCIA, we need not consider its validity under the dormant

Commerce Clause or First Amendment. Along that line, the district court’s

Commerce Clause holding is, of course, vacated by this opinion.

“The preemptive effect of a federal statute is a question of law” and is

reviewed de novo. Franks Inv. Co. v. Union Pac. R.R., 593 F.3d 404, 407 (5th Cir.

2010) (en banc). The burden of persuasion rests on the party asserting

preemption. AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th

Cir. 2004). 

The Supremacy Clause provides that the laws of the United States “shall

be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding”. U.S. CONST. art. VI, cl. 2. The

Supremacy Clause mandates displacement of state law when (1) Congress

intends expressly to do so; or (2) Congress intends implicitly to do so through a

pervasive federal regulatory scheme, or the state law conflicts with the federal

law or its purposes. English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990). Under

any preemption theory, “Congress’ intent is the ultimate touchstone”. Elam v.

Kan. City S. Ry., 635 F.3d 796, 803 (5th Cir. 2011) (internal citations and

quotations omitted). 

Our inquiry begins with the presumption that federal statutes do not

supersede States’ historic police powers, unless Congress clearly and manifestly

intended to do so. Id. at 803-04. “This [pre]sumption applies with particular

force when Congress legislates in a field traditionally occupied by state law”, but

with “less force when [legislating] in a field with a history of significant federal

presence”. Id. at 804 (internal citations and quotations omitted). 

Although interstate telecommunications has been an area of “significant

federal presence”, ASA is grounded instead in consumer protection, an area

traditionally reserved to the States. E.g., Castro v. Collecto, Inc., 634 F.3d 779,

784-85 (5th Cir. 2011) (Federal Communications Act permits States to regulate

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aspects of commercial mobile services, including consumer protection); Gen.

Motors Corp. v. Abrams, 897 F.2d 34, 41-42 (2d Cir. 1990) (compelling evidence

required to show Congressional intent to preempt state consumer protection

laws). Therefore, here the presumption remains in favor of no preemption.

Castro, 634 F.3d at 784.

A.

At oral argument, both sides were directed to submit supplemental

briefing for an issue raised by neither: the effect of 47 U.S.C. § 227(e)(9), which

exempts TCIA from TCPA’s savings clause. Although Plaintiffs do not explicitly

contend express preemption, we construe their response and supplemental briefs

as challenging ASA under both express and implied preemption.

“Congress may indicate pre-emptive intent through a statute’s express

language or through its structure and purpose.” Altria Grp., Inc. v. Good, 555

U.S. 70, 76 (2008) (citation omitted). Congress did not state expressly its intent

for TCIA to preempt state law. It did, however, exempt TCIA from TCPA’s

savings clause. TCIA’s concluding subsection states:

Notwithstanding any other provision of [§ 227],

subsection (f) shall not apply to [§ 227(e)] or to the

regulations under [§ 227(e)].

47 U.S.C. § 227(e)(9). Section 227(f), titled “Effect on State Law”, contains

TCPA’s savings clause and states in relevant part:

[N]othing in [§ 227] or in the regulations prescribed

under [§ 227] shall preempt any State law that imposes

more restrictive intrastate requirements or regulations

on, or which prohibits – 

(A) the use of telephone facsimile machines

or other electronic devices to send

unsolicited advertisements;

(B) the use of automatic telephone dialing

systems;

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(C) the use of artificial or prerecorded voice

messages; or

(D) the making of telephone solicitations.

47 U.S.C. § 227(f)(1). As part of the originally-enacted TCPA, this subsection

largely pertains to telemarketing practices.

Our court has never interpreted TCPA’s savings clause, but other courts

have disagreed over its preemptive effect. Compare Van Bergen v. Minnesota, 59

F.3d 1541, 1547-48 (8th Cir. 1995) (no express preemption, but only an

expression of non-preemptive effect); United States v. Dish Network, LLC, 667

F. Supp. 2d 952, 963-64 (C.D. Ill. 2009) (“the [savings clause] does not preempt

state laws that . . . impose more restrictive intrastate requirements . . . or [ ]

prohibit any . . . [interstate] conduct set forth in subclauses (A) through (D)”);

with Patriotic Veterans, Inc. v. Ind., ex rel. Zoeller, 821 F. Supp. 2d 1074, 1077

(S.D. Ind. 2011) (in providing “a universe of state laws that are not preempted,

this provision, by implication, suggests that Congress intended for state laws

outside of that defined universe to be preempted” (emphasis in original));

Chamber of Commerce of the United States v. Lockyer, No. 2:05-CV2257MCEKJM, 2006 WL 462482, at *8 (E.D. Cal. Feb. 27, 2006) (the savings

clause preempts state laws restricting or prohibiting certain interstate

telecommunications).

The FCC has also weighed in. Mindful of States’ historic power to regulate

intrastate calls, the FCC postulated Congress intended to provide a “uniform

regulatory scheme” under which telemarketers would not be subject to

inconsistent regulations. 18 F.C.C.R. 14014, 14064 (2003). The FCC conceded

the extent of States’ authority under TCPA’s savings clause was ambiguous, but

concluded “more restrictive state efforts to regulate interstate calling would

almost certainly conflict with [its] rules” by disrupting that uniform scheme, and

by imposing significant compliance costs on those subject to TCPA. Id. at 14063-

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64. The deference owed to this interpretation, however, remains an “academic

question”. E.g., Watters v. Wachovia Bank, N.A., 550 U.S. 1, 20 (2007) (not

deciding whether agency entitled to Chevron-deference when stating its

regulations preempt state law). 

At bottom, 47 U.S.C. § 227(e)(9)’s exempting TCIA from the savings clause

in § 227(f) is arguably unclear, both in purpose and in effect, concerning

spoofing. Because, as discussed infra, TCIA impliedly preempts ASA, express

preemption vel non need not be resolved.

B.

Preemption may be inferred, inter alia, “if there is an actual conflict

between state and federal law”. Altria Grp., 555 U.S. at 76-77 (internal citations

omitted). A state law is conflict-preempted when it operates as an obstacle to

the accomplishment of a federal objective, Pac. Gas & Elec. Co. v. State Energy

Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983), or when federal law

authorizes expressly an activity prohibited by state law, Wells Fargo Bank of

Tex. NA v. James, 321 F.3d 488, 491 n.3 (5th Cir. 2003).

Defendants contend ASA operates harmoniously with TCIA, imposing no

obstacle to the latter’s inherent federal objectives. Citing legislative history,

they identify Congress’ intent to render harmful spoofing unlawful, while

exempting law enforcement, intelligence agencies, and court orders from TCIA’s

prohibitions. 47 U.S.C. § 227(e)(7) (“This subsection does not prohibit any

lawfully authorized investigative, protective, or intelligence activity of a law

enforcement agency of the United States, a State, or a political subdivision of a

State, or of an intelligence agency of the United States.”). This contention fails,

however, to explain how these exemptions confer authority upon States to

restrict non-harmful spoofing. Moreover, it does not respond to the crux of

Plaintiffs’ claim: the protection of non-harmful spoofing is a Congressionallymandated federal objective.

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Noting TCIA plainly prohibits harmful spoofing, Plaintiffs maintain

Congress authorized – indeed, intended to protect – non-harmful spoofing.

Fortifying this contention, they rely on legislative history to demonstrate

Congress differentiated between harmful and non-harmful spoofing: by limiting

47 U.S.C. § 227(e)(1)’s language to prohibit only the former, Congress bestowed

federal-objective status upon the latter. They urge, therefore, that ASA’s

prohibition on non-harmful spoofing frustrates the accomplishment of this

federal objective.

To be sure, ASA’s proscription of non-harmful spoofing at least conflicts

obliquely with TCIA’s proscription of only harmful spoofing. Therefore, the

dispositive inquiry is whether TCIA serves a minimum regulatory function, upon

which Defendants may enact stricter anti-spoofing laws; or, whether TCIA

serves a maximum regulatory function, by sheltering non-harmful spoofing from

additional state regulation. Of course, we look first to the text of the statute.

Given the earlier-discussed, arguably unclear purpose and effect of TCIA’s

exemption from TCPA’s savings clause, the legislative history informs this

inquiry. E.g., Barnes ex rel. Estate of Barnes v. Koppers, Inc., 534 F.3d 357 (5th

Cir. 2008) (resorting to legislative history to clarify congressional intent where

statute’s preemptive scope unclear).

In a Senate report, Senator Rockefeller noted spoofing’s legitimate

importance for domestic-violence victims, or for consumers who wish to provide

a temporary call-back number that differs from their actual telephone number.

S. Rep. 111-96 (2009). Accordingly, the federal effort to curtail spoofing focused

on persons intending to cause harm through fraud or criminal mischief. Id. 

Both chambers of Congress drafted bills addressing spoofing: containing

language similar to the ASA, H.R. 1258 would have rendered unlawful spoofing

done with “intent to defraud or deceive” (emphasis added); S. 30 contained the

more narrow, as-enacted language, proscribing “the intent to defraud, cause

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harm, or wrongfully obtain anything of value”. Although both bills passed their

respective chambers, the Senate did not pass H.R. 1258, while the House passed

S. 30 without amendment.

In passing S. 30, House members stated expressly their intent to protect

non-harmful spoofing. 156 Cong. Rec. H8378-01 (2010). Congressman Stearns

stated: “We drafted . . . carefully to ensure that we only prohibit [spoofing]

intending to do harm . . . . [T]his bill protects those legitimate [spoofing]

practices”. Id. Congressman Engel echoed this intent: “[W]e don’t want some

legitimate reasons to use this technology to be outlawed. So it is only outlawed

when the intent is to defraud, cause harm, or wrongfully obtain anything of

value”. Id. Moreover, the FCC incorporated this intent by reference in its

implementing order. 26 F.C.C.R. 9114, 9117, 9130 (2011) (“As Congress

recognized . . . not all instances of [caller ID] manipulation are harmful, and

some may be beneficial . . . . Congress intended to balance carefully the

drawbacks of malicious caller ID spoofing against the benefits provided by

legitimate caller ID spoofing”.). 

The measured language of 47 U.S.C. § 227(e)(1) reflects this calibration. 

Congress could have broadened TCIA’s proscriptive reach by inserting the term

“misleading”, or words to that effect. But it did not, and because the expression

of some connotes the exclusion of others (“expressio unius est exclusio alterius”),

Congress apparently regarded some forms of spoofing worthy of protection from

more restrictive state regulation. E.g., Saxon v. Ga. Ass’n of Indep. Ins. Agents,

Inc., 399 F.2d 1010, 1013 (5th Cir. 1968) (incidental powers expressly granted

under certain conditions implicitly divested absent those conditions).

Arizona v. United States, 132 S. Ct. 2492 (2012), is illustrative. The

Immigration Reform and Control Act of 1986, 8 U.S.C. §§ 1101, et seq. (IRCA),

subjects employers who hire unauthorized aliens to criminal and civil sanctions,

but imposes no such penalties on the hired unauthorized aliens. 8 U.S.C. § 1324a;

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Arizona, 132 S. Ct. at 2504. An Arizona statute, the Support Our Law

Enforcement and Safe Neighborhoods Act, ARIZ. REV. STAT. ANN. §§ 11-1051, et

seq., went further, making it a misdemeanor for unauthorized aliens to apply for,

or solicit, work. ARIZ. REV. STAT. ANN. § 13-2928(C). Although the Arizona

statute advanced the same goal as IRCA – preventing hiring unauthorized aliens

– the Court held the Arizona statute’s enforcement scheme conflicted with the

federal regulatory system. Arizona, 132 S. Ct. at 2505. Examining the “text,

structure, and [legislative] history of IRCA”, the Court held the Arizona statute

posed an obstacle to “the careful balance struck by Congress with respect to

unauthorized employment of aliens”. Id.

TCIA’s “text, structure, and [legislative] history”, as discussed supra,

persuades us that ASA similarly upsets Congress’ considered regulatory choices.

Id. The constrained language of 47 U.S.C. § 227(e)(1) is compelling evidence of

Congress’ intent to protect non-harmful spoofing. E.g., P.R. Dep’t of Consumer

Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988) (“Where . . . federal

scheme intentionally leaves a portion of the regulated field without controls,

then the pre-emptive inference can be drawn – not from federal inaction alone,

but from inaction joined with action”. (emphasis in original)). TCIA’s legislative

history removes any lingering doubt. 

In the light of 47 U.S.C. § 227(e)(1)’s carefully-drafted language and

legislative history, and in spite of the presumption against preemption that

attaches to a State’s exercise of its police power, there is an inherent federal

objective in TCIA to protect non-harmful spoofing. ASA’s proscription of nonharmful spoofing – spoofing done without “intent to defraud, cause harm, or 

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wrongfully obtain anything of value” – frustrates this federal objective and is,

therefore, conflict-preempted.

III.

For the foregoing reasons, and although on a basis different from that

employed by the district court, the judgment is AFFIRMED.

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