Lead Opinion
Judge WALLACE concurs in the judgment in a separate opinion.
The Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, allows persons to recover statutory damages in state court for the transmission of unsolicited advertisements by means of a telephone facsimile machine “if otherwise permitted by the laws or rules of court” of the state where the action is filed, id. § 227(b)(3). On this appeal from a judgment of dismissal entered in the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge), we consider whether a state statute of limitations is among the “laws” referenced in the TCPA’s “otherwise permitted” provision, or whether the statute of limitations for TCPA actions is the federal catch-all four-year limitations period provided in 28 U.S.C. § 1658(a). In the circumstances of this case, where the relevant state law, Conn. Gen.Stat. § 52-570c, specifically recognizes a cause of action for statutory damages for the transmission of
In ordering dismissal, the district court did not decide whether Conn. Gen.Stat. § 52-570c(d) applied to this case. Instead, it concluded that this action, filed by plaintiff Earle Giovanniello on September 9, 2009, with respect to a fax transmitted by ALM Media, LLC (“ALM”) on January 28, 2004, was untimely even under the four-year limitations period of 28 U.S.C. § 1658(a). See Giovanniello v. ALM Media, LLC, No. 809 Civ. 1409(JBA),
I. Background
A. The January 28, 200k Fax Transmission
On January 28, 2004, Giovanniello allegedly received an unsolicited commercial fax at his home in Connecticut from ALM in New York. Giovanniello asserts that he was but one of more than 10,000 recipients of similar unsolicited fax advertisements sent by ALM between March 2003 and October 2009. He maintains that transmission of these faxes violated the TCPA, which prohibits, among other things, the “use [of] any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C).
This lawsuit is the fourth filed by Giovanniello under the TCPA for transmission of the January 28, 2004 fax.
1.The Initial Connecticut State Court Filings
On April 23, 2004, Giovanniello filed a putative class action under the TCPA in Connecticut state court, which he voluntarily withdrew on August 30, 2004. The following month, on September 20, 2004, Giovanniello filed a second putative class action in Connecticut state court, but voluntarily dismissed that lawsuit without prejudice on June 27, 2005.
2.The New York Federal Court Filing
Over a year and a half later, on March 8, 2007, Giovanniello invoked federal diversity jurisdiction to file his third putative class action under the TCPA, this time in the United States District Court for the Southern District of New York (“Southern District action”). The district court dismissed the complaint on August 6, 2007, holding that (1) the TCPA incorporated a New York law prohibiting class-action suits seeking statutory damages, N.Y. C.P.L.R. § 901(b), and (2) without viable class allegations, Giovanniello failed to satisfy the minimum amount-in-controversy requirement for diversity jurisdiction. See Giovanniello v. N.Y. Law Publ’g Co., No. 07 Civ.l990(HB),
Giovanniello moved for reconsideration, which the district court denied on December 11, 2007. See Giovanniello v. N.Y. Law Publ’g Co., No. 07 Civ.1990(HB),
3.The Instant Connecticut Federal Court Filing
On September 8, 2009 — more than five and a half years after he received the January 28, 2004 fax here at issue — Giovanniello again invoked diversity jurisdiction to file this, his fourth, putative class action against ALM in the United States District Court for the District of Connecticut. ALM moved to dismiss the complaint as untimely, arguing that the TCPA incorporates state law filing limitations and that, under Connecticut law, a private action by the recipient of an unsolicited commercial fax must be brought within two years of transmission. See Conn. Gen. Stat. § 52-570c(d). ALM further contended that even if the federal catch-all four-year statute of limitations applied, see 28 U.S.C. § 1658(a), Giovanniello’s action was nonetheless time-barred.
On September 3, 2010, the district court granted ALM’s motion to dismiss. See Giovanniello v. ALM Media, LLC,
This timely appeal followed.
II. Discussion
We review de novo a district court’s grant of a motion to dismiss, including its legal conclusions concerning the applicable statute of limitations. See City of Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc.,
A. State Statutes of Limitations Are Properly Consulted To Determine if a TCPA Action is “Otherwise Permitted” by State Law
In determining the statute of limitations applicable to Giovanniello’s instant action, we begin, as we must, with the relevant statutory texts. See, e.g., Cruz-Miguel v. Holder,
The act of Congress here at issue, the TCPA, was enacted in 1991 and does not expressly provide a statute of limitations for the private cause of action it authorizes. It does, however, state in pertinent part that “[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State,” a private action to enjoin a TCPA violation and to recover damages for actual monetary loss or $500, whichever is greater. 47 U.S.C. § 227(b)(3) (emphasis added). Thus, we must consider whether the highlighted language includes a state statute of limitations.
In construing the TCPA’s “otherwise permitted” provision, we have concluded
The purpose of the TCPA was to assist those states — then numbering forty — that had enacted legislation to protect their residents from unsolicited commercial telecommunications by filling a perceived jurisdictional gap for interstate communications that states might not otherwise be able to reach. See TCPA, Pub.L. No. 102-243, § 2(7), 105 Stat. 2394, 2394 (1991) (codified as a note to 47 U.S.C. § 227) (“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.”); see also S.Rep. No. 102-178, at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 1968,1970 (“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.”); see generally Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., Ltd.,
In his concurring opinion, Judge Wallace acknowledges that “it is possible in the abstract to read the portion of [the] TCPA providing for a private claim ‘if otherwise permitted by the laws or rules of court of a State’ ... as a decision by Congress to adopt state statutes of limitations for TCPA claims.” Wallace, J., Op. Concurring in Part (‘Wallace, J., Op.”), post at [601]. Nevertheless, he contends that the provision should be interpreted as permitting states to decide only “to permit private TCPA actions in their courts or to not permit them.” Id. That restrictive interpretation, however, is foreclosed by this court’s prior decisions, which have interpreted the TCPA to “use[ ] state law to define the federal cause of action.” Holster v. Gatco, Inc.,
In sum, while a TCPA diversity action is somewhat unusual in that the cause of action is created by federal rather than state law, that federal law authorizes TCPA claims only as “otherwise permitted” by state law. This indicates that “Congress intended to give states a fair measure of control over solving the problems that the TCPA addresses.” Holster v. Gatco, Inc.,
In light of the fact that Giovanniello received the fax at issue in Connecticut, the parties do not question the application of that state’s law to this case. See generally Weber v. U.S. Sterling Sec., Inc.,
Giovanniello complains that he received a single unsolicited commercial fax from ALM on January 28, 2004. He did not commence this action until September 8, 2009, more than five and a half years later. Even if Connecticut law were to toll all times when Giovanniello’s earlier state and federal putative class actions pertaining to the January 28, 2004 fax were pending, including through disposition of his motion for reconsideration and appeal of the dismissal of the Southern District action, Giovanniello’s September 8, 2009 filing would be untimely and, therefore, not “otherwise permitted” by § 52-570c(d).
First, the issue in this case is not simply what analogous state statute of limitations might apply to a cognizable TCPA claim, but whether a TCPA claim is “otherwise permitted” when filed outside a state statute of limitations given the unambiguous limitation in 47 U.S.C. § 227(b)(3). See Holster v. Gatco, Inc.,
Second, because Conn. Gen.Stat. § 52-570c(d) expressly applies to unsolicited commercial fax claims, there is no difficulty here in determining the period within which claims pertaining to interstate transmissions are “otherwise permitted” by Connecticut state law. Cases that have applied 28 U.S.C. § 1658(a) to TCPA claims where the analogous state statute of limitations was uncertain, see, e.g., Benedia v. Super Fair Cellular, Inc., No. 07 C 01390,
Third, by granting states broad authority to determine when, if at all, TCPA claims may be brought in their courts, Congress has effectively disclaimed any interest in uniform treatment of TCPA claims among the states. See Foxhall Realty Law Offices, Inc. v. Telecomm. Premium Servs., Ltd,.,
Accordingly, in these circumstances, where Connecticut law expressly requires claims for unsolicited commercial faxes to be filed within two years of transmission, we conclude that for Giovanniello’s fourth TCPA complaint to be deemed “otherwise permitted” by Connecticut law, it had to have been filed within the limitations period set forth in Conn. Gen.Stat. § 52-570c(d), not the federal catch-all statute of limitations established by 28 U.S.C. § 1658(a). Because Giovanniello’s TCPA claim was untimely and, thus, not permitted under Connecticut state law, it was properly dismissed.
III. Conclusion
To summarize, we conclude as follows:
1. State statutes of limitations are properly consulted to determine if a TCPA action is “otherwise permitted by the laws or rules of court of [that] State.” 47 U.S.C. § 227(b)(3).
2. Because Conn. GemStat. § 52-570c(d) expressly permits actions for unsolicited commercial faxes to be maintained only if filed within two years of transmission, plaintiffs TCPA claim had to be filed within that time, and not the four-year limitations period provided by the federal catch-all statute of limitations, 28 U.S.C. § 1658(a). Having failed to do so, plaintiffs TCPA claim is not “otherwise permitted” by Connecticut state law and must be dismissed.
Accordingly, the judgment of the district court is Affirmed.
Notes
. The district court’s decision not to rule conclusively as to which statute of limitations applied to a TCPA claim that was untimely under both statutes is understandable. This court, however, cannot avoid that issue because the application of either the state or federal statute of limitations raises a question of law unresolved in this circuit. It serves neither the parties nor district courts presented with TCPA filings to resolve the issue applicable to 28 U.S.C. § 1658(a) — the reach of American Pipe tolling — and to avoid the one pertaining to Conn. Gen.Stat. § 52-570c(d)— the construction of the "otherwise permitted" provision of 47 U.S.C. § 227(b)(3) — the latter of which shows that the state statute of limitations, in fact, controls this TCPA filing.
This opinion does not further address American Pipe tolling, and we intimate no view with respect to whether tolling under American Pipe extends through the pendency of a motion for reconsideration or on appeal. We acknowledge, however, that every circuit to have addressed the scope of this doctrine has concluded, as the district court did here, that American Pipe tolling ceases upon denial of class certification. See Taylor v. United Parcel Serv., Inc.,
. In maintaining that federal rather than state law provided the applicable statute of limitations, Giovanniello calculated the federal four-year limitations period to afford him 1,461 days from the January 28, 2004 fax transmission to file his TCPA complaint. Although acknowledging that his September 8, 2009 complaint was filed 2,051 days after the fax transmission, or 590 days outside the federal statute of limitations, Giovanniello asserted that this delinquency would be eliminated if the statute were tolled during the pendency of his two Connecticut putative class actions and the Southern District action. Specifically, if tolling continued through the August 6, 2007 dismissal of the Southern District action, the complaint would be untimely by 30 days, but if tolling were extended through either the motion for reconsideration or appeal of that decision, as Giovanniello urged, the complaint would be timely.
. As we recognized in Holster, the Supreme Court’s opinion in Shady Grove abrogated our decision in Bonime only to the extent that it relied on the doctrine of Erie R.R. Co. v. Tompkins,
.Judge Wallace posits that permitting states to impose statutes of limitations on TCPA actions allows states to "modify a right established by Congress” in "direct tension with the Supremacy Clause.” Wallace, J., Op., post at [604, 605]. This concern is misplaced because we construe the "otherwise permitted” provision as a congressional delegation of authority to the states to define the TCPA action permitted in their respective jurisdictions. In any event, it would be odd to conclude, as Judge Wallace's argument suggests, that the TCPA permits states, without contravening the Supremacy Clause, completely to deny a plaintiff his federal "substantive rights” under the TCPA by prohibiting such claims from being brought in state courts altogether, but not to specify a reasonable time frame within which such actions must be filed. Further, the analogy that Judge Wallace draws between a statute of limitations and a state law prohibiting treble damages under the TCPA is inapt. See id. at [604-05]. Whether a state law that restricts the remedies available in a viable TCPA action would be preempted — an issue not before us on appeal — is a fundamentally different question from whether such an action is "otherwise permitted” by state law in the first place. We express no opinion as to whether a state could adopt such restrictions without running afoul of the Supremacy Clause.
. Judge Wallace’s preferred resolution of this appeal based on American Pipe tolling would similarly require us to assume that TCPA actions are "otherwise permitted” under Connecticut state law.
. That Connecticut’s tolling rules would apply is a necessary corollary to our conclusion that the TCPA claim is subject to § 52-570c(d)’s two-year statute of limitations. See generally Board of Regents v. Tomanio,
. In Benedia, the district court concluded that "[ajbsent an express statute of limitations, or a clear direction to consult state law, § 1658 controls.”
. Judge Wallace accuses us of ”brush[ing] aside” state court cases applying § 1658(a) to TCPA claims by ignoring their underlying rationale, i.e., that Congress has not clearly indicated that state statutes of limitations should apply to TCPA claims. Wallace, J., Op., post at [602]. Not so. In Zelma v. Konikow,
Further, a number of other state courts have applied state statutes of limitations to TCPA claims even where such statutes, unlike Conn. Gen.Stat. § 52-570c(d), do not specifically pertain to unauthorized commercial fax transmission claims. See, e.g., Edwards v. Emperor’s Garden Rest.,
. In Maryland, where state law simply prohibits violations of the federal TCPA, see Maryland Telephone Consumer Protection Act ("MTCPA"), Md.Code, Com. Law § 14-3201 to -3202, state courts have determined that claims brought under the TCPA are subject to the federal catch-all four-year statute of limitations provided by 28 U.S.C. § 1658(a), see Worsham v. Fairfield Resorts, Inc.,
Concurrence Opinion
concurring in the judgment:
I agree with the majority that the district court’s judgment must be affirmed. I do not agree, however, that Giovanniello’s claim is barred by Connecticut General Statute § 52-570c. I would resolve this case on the same ground as the district court: that Giovanniello’s claim is time-barred regardless of whether a state or federal statute of limitations applies.
In holding that Connecticut law provides the statute of limitations for Giovanniello’s federal claim under the Telephone Consumer Protection Act of 1991 (TCPA), the majority adds to a growing split among the state and federal courts. Where, as here, a decision on this issue is not necessary, I would avoid it. I would do so in this case especially because I view the majority’s answer to this issue to be incorrect. TCPA creates a federal claim that, if permitted by the laws or court rules of a state, runs parallel to any state-created
I.
The district court dismissed Giovanniello’s claim on the ground that it was time-barred regardless of whether a state two-year statute of limitations or the federal four-year catch-all statute of limitations applies because tolling of the limitations period under American Pipe and Construction Co. v. Utah,
Giovanniello has presented no convincing reason for us to question the district court’s application of American Pipe tolling to 28 U.S.C. § 1658(a). In addition, the majority acknowledges that “every circuit to have addressed the scope of this doctrine has concluded, as the district court did here, that American Pipe tolling ceases upon denial of class certification.” Op. at [589] n. 1 (citations omitted).
There is a benefit for the Second Circuit to join its sister circuits on this issue. It would resolve an important, generally applicable, and as yet unsettled question of circuit law. On the other hand, while I understand the majority’s desire to provide guidance to TCPA litigants and district courts presented with TCPA claims, there is very little utility in providing such guidance in this case because TCPA claims are relatively rare in district courts. The Second Circuit does not recognize federal question jurisdiction for TCPA actions. Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd.,
Furthermore, the courts within this circuit that have exclusive jurisdiction over run-of-the-mill TCPA claims (i.e., the state courts) are free to ignore the majority’s decision and may well disagree with its conclusions. Cf. Benedia v. Super Fair Cellular, Inc., No. 07 C 01390,
The majority’s decision that Connecticut law, rather than federal law, provides the statute of limitations for TCPA claims originating in Connecticut is particularly troubling because it tacitly decides that litigants have a right to bring a TCPA action in Connecticut in the first place. While the parties did not present this question for our review, it makes little sense to decide whether Connecticut’s or Congress’s statute of limitations applies to TCPA claims originating in Connecticut if it turns out that TCPA actions are not even permitted by Connecticut law.
That Connecticut does permit private TCPA actions is far from clear. I am not aware of any statute or court rule that affirmatively authorizes TCPA actions in Connecticut state courts. Rather, Connecticut has adopted a statute that regulates unsolicited facsimile transmissions and provides a private right of action for violation of the statute. Conn. Gen.Stat. § 52-570c. Connecticut’s law contains substantial differences from the TCPA. Cf. Conn. Gen.Stat. § 52-570c with 47 U.S.C. § 227(b). For example, the Connecticut statute allows an aggrieved person to recover attorney’s fees whereas the TCPA does not; and the TCPA provides treble damages for a willful or knowing violation whereas the Connecticut statute does not. See id. The fact that Connecticut has adopted its own scheme providing its own remedies could be interpreted as a rejection of private TCPA actions in favor of private causes of action under Connecticut law. Connecticut’s law authorizing private actions may well work exclusive of, rather than parallel to, private actions under the TCPA.
Several courts have considered whether TCPA requires the states to provide a forum for private claims. Some courts have held that the Supremacy Clause of the United States Constitution requires states to hear actions brought under section 227(b)(3). See, e.g., Italia Foods, Inc. v. Sun Tours, Inc., No. 110350,
The Second Circuit has not addressed this precise question. However, its decision in Foxhall supports either the “opt out” or the “opt in” theory.-
The majority’s decision that Connecticut General Statute § 52-570c provides the statute of limitations for private TCPA actions is premised on an assumption that TCPA actions are, in fact, permitted by the laws or court rules of Connecticut. I hesitate to accept that premise without further argument. Resolving this case by applying the principles of American Pipe tolling, on the other hand, would allow us to pass on that question altogether because Giovanniello’s claim would be barred whether or not Connecticut law permits private TCPA actions.
II.
I disagree with the majority’s decision to resolve this case by adopting a state statute of limitations rather than by merely applying American Pipe tolling. Nevertheless, because the majority tackles the question of which statute of limitations applies, I will explain why I disagree with the majority’s conclusion. First, assuming that TCPA actions are permitted by Connecticut law, the Connecticut statute does not purport to provide a limitations period for such causes of action. As a matter of statutory construction, Connecticut General Statute § 52-570c cannot provide the limitations period for TCPA claims. Second, as a federal claim, the substantive elements of a TCPA claim — including the limitations period — must stem from federal law. Therefore, even if Connecticut did purport to impose its own limitations period for TCPA claims, such a law would be preempted by 28 U.S.C. § 1658(a).
Connecticut General Statute § 52-570c(a) prohibits, among other things, the use of a “machine that electronically transmits facsimiles through connection with a telephone network ... to transmit unsolicited advertising material.... ” Subsection (d) provides:
Any person aggrieved by a violation of the provisions of this section may bring a civil action in the Superior Court to enjoin further violations and for five hundred dollars for each violation, together with costs and a reasonable attorney’s fee. No such action shall be brought but within two years from the date of the act complained of.
Conn. Gen.Stat. § 52-570c(d). Appellee argues, and the majority agrees, that this statute provides the limitations period for claims brought under TCPA.
The majority does not base its decision to apply the limitations period from section 52-570c to claims brought under 47 U.S.C. § 227(b) in the language of either statute. Rather, the majority concludes that the two-year limitations period applies to TCPA claims originating in Connecticut because both statutes regulate the same type of conduct. While this reasoning has some intuitive appeal, it is not supported by principles of statutory construction.
Section 52-570e creates a state cause of action. To the extent Connecticut law permits the courts of Connecticut to hear a
The majority generalizes from section 52-570c that “Connecticut law does not ‘otherwise permit[ ]’ an action for unsolicited commercial faxes filed more than two years after transmission.” Op. at [594], But that is not what the statute says. The statute does not “otherwise permit” an action for violation of section 52-570c more than two years after the violation. We must apply the statute as it is written. Because section 52-570c, by its own terms, applies only to actions for violations of that section, I conclude that it has no applicability to TCPA actions.
III.
Even if Connecticut had adopted a statute that, by its own terms, imposed a specific limitations period for TCPA claims, the statute would be preempted by federal law. Section 1658(a) provides, “Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.” 28 U.S.C. § 1658(a). Thus, to the extent a state law purports to impose a statute of limitations on a civil action arising under a post-1990 Act of Congress, such a law is preempted. Only Congress can “otherwise provide[]” for a different limitations period.
The majority does not dispute that civil actions for violation of TCPA “arise under an Act of Congress” enacted after Congress enacted section 1658(a). Op. at [591]. The majority also does not contend that Congress has affirmatively “otherwise provided” any specific statute of limitations for TCPA actions. Rather, the majority concludes that a different limitations period is “otherwise provided by law” because Congress made the existence of a private right of action contingent on the states permitting such actions in their courts.
The majority’s theory is inconsistent with Supreme Court precedent. In Jones v. R.R. Donnelley & Sons Co., the Supreme Court held that section 1658 should be interpreted broadly to provide the limitations period “if the plaintiffs claim against the defendant was made possible by a post-1990 enactment.”
Although it is possible in the abstract to read the portion of TCPA providing for a private claim “if otherwise permitted by the laws or rules of court of a State,” 47 U.S.C. § 227(b)(3), as a decision by Congress to adopt state statutes of limitations for TCPA claims, that is not the interpretation consistent with Jones or the legislative history. As the majority points out, the legislative history suggests that Congress adopted this portion of TCPA mere
To say that the “if otherwise permitted” language reflects an intent to abandon the federal statute of limitations, however, requires “linguistic contortions” that are contrary to the teachings of Jones. See Worsham v. Fairfield Resorts, Inc.,
The majority concludes that section 1658 should not be read broadly to provide a limitations period for TCPA because it does not believe the concerns with “limitation borrowing” that led Congress to enact section 1658 are present in this case. Op. at [595]. I doubt that the concerns the Supreme Court identified in Jones are absent in this case. But even if they were, I would not ignore the Court’s clear direction to interpret section 1658 broadly.
First, the majority’s declaration that “there is no difficulty here in determining the period within which claims pertaining to interstate transmissions are ‘otherwise permitted’ by Connecticut state law,” Op. at [595], is not accurate. If the majority were to apply the plain language of Connecticut General Statute § 52-570c(d), it would recognize that the statute provides a limitations period only for state causes of action brought under that section and not for parallel TCPA claims. However, even if some states do have clearly applicable statutes of limitations, that does not alleviate the concern with limitation borrowing that led Congress to enact section 1658. If TCPA incorporates state statutes of limitations, courts will have to decide on a state-by-state basis (1) whether the state has a statute of limitations specifically applicable to TCPA causes of action, (2) if not, whether one or more general state statutes of limitations could control a TCPA cause of action, and (3) which of the competing statutes should apply. Thus, holding that applicable state statutes of limitations control TCPA filings creates exactly the same problems that section 1658(a) was designed to avoid.
The majority brushes aside the cases that have applied section 1658 to TCPA claims by saying that, in those cases, the “analogous state statute of limitations was uncertain.” Op. at [595]. This characterization of the cases is inaccurate and fails to engage the rationale that supports them, namely, that Congress has not clearly indicated that state statutes of limitations should apply.
In Zelma, the Appellate Division of the New Jersey Superior Court held that section 1658 provided the limitations period
Similarly, in Worsham, the Court of Special Appeals of Maryland held that the four-year period of section 1658 applies to TCPA claims, whereas a shorter, three-year period applies to a parallel claim brought under the Maryland Telephone Consumer Protection Act, “which ... declares it to be a violation of Maryland law for a person to violate the federal TCPA.”
Contrary to the majority’s characterization, cases such as Zelma and Worsham did not adopt section 1658 because the analagous state limitations period was unclear, but rather because TCPA does not clearly indicate that a different statute of limitations is “otherwise provided by law.” I agree that the Supreme Court’s instruction in Jones to interpret section 1658 to apply broadly means that we must interpret possible exceptions to section 1658 narrowly. We should hold there is an exception to section 1658 only if Congress has clearly indicated that a different limitations period controls. TCPA’s “if otherwise permitted” clause does not clearly provide a statute of limitations other than section 1658.
IV.
I disagree with the majority to the extent it relies on Bonime v. Avaya, Inc.,
Bonime and Holster are distinguishable from this case. The New York law prohibiting TCPA class-actions does not amend or abridge any of the rights enacted by Congress because Congress has not guaranteed TCPA claimants a right to bring actions on behalf of a class. It has, however, provided that private causes of action arising under an Act of Congress enacted after December 1, 1990 (including actions under the TCPA), may be brought within four years after the cause of action accrues unless Congress says otherwise. 28 U.S.C. § 1658. As explained above, the “if otherwise permitted” does not clearly provide for a different limitations period. Therefore, a state statute that purports to “permit” TCPA actions brought within two years, but “not permit” actions brought within four years attempts to modify a right established by Congress.
I am not persuaded by the majority’s remaining arguments in favor of applying state statutes of limitations. The majority posits: “Congress placed no restrictions on the state laws or court rules that must be satisfied. Rather, the ‘as permitted’ requirement is unqualified.” Op. at [593]. Not so. Section 227(b)(3) does not give the states carte blanche to regulate interstate communications. If a state disagreed with Congress’s decision to provide treble damages for willful or knowing violations of the TCPA and passed a law “permitting” TCPA claimants to sue for injunctive relief but “not permitting” them to sue for treble damages, such an act would certainly be preempted. Similarly, unless Congress actually intended to take TCPA actions out from under section 1658, the states have no power to impose a different limitations period.
A more plausible interpretation of the “if otherwise permitted” clause is that Congress left the states to decide how to spend their resources on TCPA enforcement. Some states may open the doors of their courts to private TCPA claimants. Others may leave enforcement to their attorneys general or the Federal Communications Commission. See Int'l Sci. & Tech. Inst, Inc. v. Inacom Commc’ns. Inc.,
I also disagree with the majority’s contention that Congress “disclaimed any interest in uniform treatment of TCPA claims among the states.” Op. at [596]. In Foxhall, this court recognized that the “existence of a private right of action under the TCPA could vary from state to state,”
I would resolve this case by holding that Giovanniello’s claim was barred because even if Connecticut permits private TCPA actions and regardless of which statute of limitations applies, his claim was not timely. Nevertheless, the majority wishes to address the issue whether TCPA provides for state statutes of limitations to govern private TCPA actions. I conclude that the federal four-year limitations period must apply.
Therefore, I concur only in the judgment.
. The majority, at note 4 of its opinion, misunderstands my concern. Congress certainly could permit states to impose statutes of limitations on TCPA actions. If, as the majority argues, Congress did provide for state limitations periods to control private TCPA actions, then obviously such statutes would not be preempted. My point is that Congress provided its own statute of limitations (28 U.S.C. § 1658), and it did not “otherwise provide!] by law” for another limitations period to apply. Thus, any attempt by a state to impose its own statute of limitations on TCPA actions is not permitted. I do not believe this argument is odd. The Congress-enacted limitations period for private TCPA actions is just as much a part of TCPA as are its remedies.