PATRIOTIC VETERANS, INC. v. STATE OF INDIANA et al
Filing
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ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND ORDER GRANTING PERMANENT INJUNCTION: Accordingly, the Court GRANTS the Plaintiff's request for an injunction against enforcement of the IADMS with regard to interstate calls made to express politic al messages. Defendant Greg Zoeller, in his official capacity as Attorney General of the State of Indiana, is hereby ENJOINED from enforcing the IADMS, Indiana Code 24-5-14-1, et seq., with respect to any interstate telephone call made to express a political message ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 9/27/2011. (DWH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PATRIOTIC VETERANS, INC.,
Plaintiff,
vs.
STATE OF INDIANA, ex rel. GREG
ZOELLER, ATTORNEY GENERAL, et al.,
Defendants.
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) CAUSE NO. 1:10-cv-723-WTL-TAB
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ENTRY ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND
ORDER GRANTING PERMANENT INJUNCTION
This cause is before the Court on the parties’ cross- motions for summary judgment. The
motions are fully briefed and the Court, being duly advised, GRANTS the Plaintiff’s motion and
DENIES the Defendants’ motion for the reasons set forth below. In light of this ruling, the
Court also GRANTS the Plaintiff’s request for a permanent injunction.
I. RELEVANT FACTS
Plaintiff Patriotic Veterans, Inc., is an Illinois non-profit corporation that exists for the
purpose of informing voters of the positions taken by candidates and office holders on issues of
interest to veterans. In furtherance of its mission, the Plaintiff wishes to place automated
interstate telephone calls to Indiana residents to communicate political messages relating to
particular candidates or issues. However, doing so would violate Indiana’s Automated Dialing
Machine Statute (“IADMS”), Ind. Code 24-5-14-1, et seq., which provides, in relevant part:
(a)
This section does not apply to messages:
(1)
from school districts to students, parents, or employees;
(2)
to subscribers with whom the caller has a current business or
personal relationship; or
(3)
(b)
advising employees of work schedules.
A caller may not use or connect to a telephone line an automatic dialingannouncing device unless:
(1)
The subscriber has knowingly or voluntarily requested, consented
to, permitted, or authorized receipt of the message; or
(2)
The message is immediately preceded by a live operator who
obtains the subscriber’s consent before the message is delivered.
Ind. Code 24-5-14-5(b). If the IADMS did not exist, the Plaintiff “would place automated phone
calls related to its mission to Indiana Veterans and voters.” Indiana Attorney General Greg
Zoeller has declined to exempt political calls from enforcement under the IADMS1 and would
seek fines and injunctive relief against the Plaintiff if it placed automated political calls to
Indiana residents. Indeed, violation of the IADMS constitutes a Class C misdemeanor. Ind.
Code 24-5-14-10.2
II. DISCUSSION
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
1
When applying another Indiana statute, the Telephone Privacy Act, a previous Indiana
Attorney General recognized “an ‘implicit exclusion’ for calls soliciting political contributions.”
See National Coalition of Prayer, Inc. v. Carter, 455 F.3d 783, 784 (7th Cir. 2006). Attorney
General Zoeller recognizes no such exclusion with regard to the IADMS and has expressly
reminded Indiana’s political parties that the statute does not exempt political calls and that he
intends to actively enforce the statute’s provisions.
2
The Court finds that with these uncontraverted facts the Plaintiff has demonstrated the
existence of a justiciable controversy by demonstrating that it “has ‘an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and
[that] there exists a credible threat of prosecution thereunder.’” Schirmer v. Nagode 621 F.3d
581, 586 (7th Cir. 2010) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289,
298 (1979)).
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entitled to judgment as a matter of law.” In this case, the parties agree that none of the relevant
facts are in dispute; rather, the resolution of this case hinges solely on issues of law.
Specifically, the Plaintiff alleges that the IADMS is unenforceable, at least as applied to political
messages, because it violates the First Amendment. The Plaintiff also alleges that the IADMS is
preempted by the Federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
Because “federal courts are supposed to explore all non-constitutional grounds of decision first,
to ensure against unnecessary constitutional adjudication,” Ameritech Corp. v. McCann, 403
F.3d 908, 911 (7th Cir. 2005) (citing Jean v. Nelson, 472 U.S. 846, 854 (1985), and Horn Farms,
Inc. v. Johanns, 397 F.3d 472, 477 (7th Cir. 2005)), the Court will consider the parties’
preemption arguments first.3
A. TCPA Preemption
When determining whether a state statute is preempted by federal law, the Court’s task is
to determine whether Congress intended for federal law to be preemptive in the circumstances at
issue. Indiana Bell Telephone Co.,Inc. v. Indiana Utility Regulatory Com'n, 359 F.3d 493, 497
(7th Cir. 2004) (“Congressional intent ‘is the ultimate touchstone’ of pre-emption analysis.”)
(quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)). “Congress’s intent may be
explicit or it may be implicit in the statute’s structure and purpose.” Id. (citing Gade v. National
Solid Wastes Mgmt. Ass’n, 505 U.S. 88 (1992)). Courts that have tried to discern Congressional
intent with regard to the preemptive effect of the TCPA have reached different results. Compare
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Preemption is, of course, “basically constitutional in nature, deriving its force from the
operation of the Supremacy Clause.” Douglas v. Seacoast Products, Inc., 431 U.S. 265, 271
(1977). However, “it is treated as ‘statutory’ for purposes of our practice of deciding statutory
claims first to avoid unnecessary constitutional adjudications.” Id.
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Klein v. Vision Lab Telecomm., Inc., 399 F. Supp.2d 528 (S.D.N.Y. 2005), and Gottlieb v.
Carnival Corp., 367 F. Supp.2d 301 (E.D.N.Y. 2005), rev’d on other grounds, 436 F.3d 335 (2nd
Cir. 2006) (each finding preemption), with Van Bergen v. Minnesota, 59 F.3d 1541 (8th Cir.
1995), and Palmer v. Sprint Nextel Corp. 674 F. Supp.2d 1224 (W.D. Wash. 2009) (each finding
no preemption). For the reasons set forth below, this Court finds that the TCPA does preempt
the IADMS as it applies to the activities in which the Plaintiff wishes to engage.
The TCPA does not contain an express preemption clause. Rather, it contains a savings
clause that provides, in relevant part:
[N]othing in this section or in the regulations prescribed under this section shall
preempt any State law that imposes more restrictive intrastate requirements or
regulations on, or which prohibits . . .
(B) the use of automatic telephone dialing systems.4
47 U.S.C.A. § 227(f)(1). By defining in this way 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. This suggestion finds support in the legislative history of the
TCPA. The Senate Report discussing the need for the legislation included the following
statement:
[O]ver 40 States have enacted legislation limiting the use of ADRMPs [automatic
dialer recorded message players] or otherwise restricting unsolicited
telemarketing. These measures have had limited effect, however, because States
do not have jurisdiction over interstate calls. Many States have expressed a desire
for Federal legislation to regulate interstate telemarketing calls to supplement
their restrictions on intrastate calls.
S. Rep. No. 102-178 (1991); see also id. (“Federal action is necessary because States do not have
4
The TCPA applies to practices other than the use of automatic telephone dialing
systems, but that is the only practice at issue in this case.
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the jurisdiction to protect their citizens against those who use these machines to place interstate
telephone calls.”). Further, in enacting the TCPA, Congress made the following finding: “Over
half the States now have statutes restricting various uses of the telephone for marketing, but
telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is
needed to control residential telemarketing practices.” PL 102–243 § 2(7), 105 Stat. 2394
(1991). Even more direct is the following comment by Senator Hollings, co-sponsor of the
TCPA:
Section 227(e)(1) clarifies that the bill is not intended to preempt State authority
regarding intrastate communications except with respect to the technical
standards under section 227(d) and subject to section 227(e)(2). Pursuant to the
general preemptive effect of the Communications Act of 1934, State regulation of
interstate communications, including interstate communications initiated for
telemarketing purposes, is preempted.
137 Cong. Rec. S18781-02, S18784. As “a sponsor’s statement to the full Senate,” this
statement “carries considerable weight” in determining whether Congress intended the TCPA to
have preemptive effect with regard to interstate regulation. See Corley v. United States, 556 U.S.
303, 129 S. Ct. 1558, 1569.
The language of the savings clause coupled with the consistent legislative history leads
the Court to determine that the TCPA was enacted with the purpose of establishing exclusive
regulations relating to the interstate use of automatic telephone dialing systems, as well as
establishing regulations that would apply to their intrastate use unless a particular state chose to
enact (or already had enacted) more stringent regulations. To read the TCPA otherwise would
render the word “intrastate” within the savings clause entirely meaningless and thus be
inconsistent with the “cardinal principle of statutory construction that we must give effect, if
possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000).
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If Congress intended for the TCPA to have no preemptive effect, it would not have included the
word “intrastate” in the savings clause; the fact that it did indicates that it intended for state laws
relating to the interstate use of automatic telephone dialing systems–or at least a portion of those
laws, as discussed below–to be preempted, while more restrictive intrastate laws would be
enforceable.
B. Application of the TCPA’s Savings Clause to the IADMS
Having determined that the TCPA does have preemptive effect, the Court now must
determine whether the TCPA preempts the IADMS as it applies to the activities in which the
Plaintiff wishes to engage. The Defendants argue that the TCPA’s savings clause operates to
save the IADMS from any preemptive effect the TCPA might have. The Court disagrees.
As noted above, the savings clause reads as follows:
[N]othing in this section or in the regulations prescribed under this section shall
preempt any State law that imposes more restrictive intrastate requirements or
regulations on, or which prohibits . . .
(B) the use of automatic telephone dialing systems.
47 U.S.C.A. § 227(f)(1). If one were to diagram this sentence and read it literally, the savings
clause would apply to (1) any state law that imposes more restrictive intrastate requirements or
regulations on the use of automatic telephone dialing systems; (2) any state law that prohibits the
intrastate use of automatic telephone dialing systems; and (3) any state law that prohibits the
interstate use of automatic telephone dialing systems. It would not apply to any state law that
imposes more restrictive interstate requirements or regulations on the use of automatic telephone
dialing systems; in other words, it would protect a state’s ability to prohibit conduct altogether
but not its ability to place restrictions on it. This result is certainly perplexing, and “[w]here the
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literal reading of a statutory term would ‘compel an odd result,’ we must search for other
evidence of congressional intent to lend the term its proper scope.” Public Citizen v. U.S. Dept.
of Justice, 491 U.S. 440, 454 (1989) (citations and internal quotation marks omitted). “The
circumstances of the enactment of particular legislation, for example, may persuade a court that
Congress did not intend words of common meaning to have their literal effect.” Id. (citations
and internal quotation marks omitted).
In this case, given the awkward grammatical structure of the sentence and the legislative
history discussed above, the Court does not believe that the literal reading of the statute is what
Congress intended. Rather, Congress intended to distinguish between state laws applying to the
interstate use of automatic telephone dialing systems, which are preempted, and state laws
applying to the intrastate use of automatic telephone dialing systems, which pursuant to the
savings clause are not preempted as long as they are more restrictive than the TCPA.
However, even if the savings clause is read in the strictly literal sense, it does not operate
to save the IADMS as it applies to the Plaintiff. The IADMS does not prohibit the use of
automatic telephone dialing systems; rather, it provides that automatic telephone dialing systems
may be not used unless certain requirements are met or certain exceptions apply. In other words,
the IADMS regulates the use of automatic telephone dialing systems. Even if read literally, the
savings clause would not apply to the regulation of the interstate use of automatic telephone
dialing systems; rather, it would operate only to save state laws that prohibit their interstate use.
Accordingly, the IADMS is preempted by the TCPA with regard to the activities in which the
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Plaintiff seeks to engage.5
III. CONCLUSION
For the reasons set forth above, the Court determines that the IADMS is preempted by
the TCPA as it applies to the interstate use of automatic telephone dialing systems. Accordingly,
the Court GRANTS the Plaintiff’s request for an injunction against enforcement of the IADMS
with regard to interstate calls made to express political messages.6 See Complaint at 8 (asking
Court to “enter a permanent injunction enjoining the Defendants and their agents from taking
any action under or to enforce or implement the ADMS with respect to political calls and
interstate communications”). Defendant Greg Zoeller, in his official capacity as Attorney
General of the State of Indiana, is hereby ENJOINED from enforcing the IADMS, Indiana Code
24-5-14-1, et seq., with respect to any interstate telephone call made to express a political
message.
SO ORDERED: 09/27/2011
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
5
Because the Court finds in favor of the Plaintiff on the preemption issue, it is neither
necessary nor appropriate for the Court to address the parties’ First Amendment arguments.
6
While the Court’s ruling could support an injunction that was not limited to political
messages, the Court declines to enter an injunction broader than that sought by the Plaintiff.
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Copies to all counsel of record via electronic notification
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