Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc. , 2005 Colo. App. LEXIS 1354 ( 2005 )

Judge CRISWELL

specially concurring.

I fully agree with the majority that the courts of this state have jurisdiction to adjudicate private claims under the Telephone Consumer Protection Act (TCPA). I write separately, however, because I am convinced that, whether the “acknowledgment” or the “opt out” interpretation of the pertinent proviso of the federal act is adopted, the result would be the same. Hence, I see no need to accept as gospel the validity of either approach.

I should first note that, like the majority, I reject the notion that, by adopting the proviso, Congress intended that no state court would have jurisdiction over TCPA private claims, unless the state took affirmative action to vest its courts with the requisite jurisdiction. This “opt in” interpretation adopted by Autoflex Leasing, Inc. v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815 (Tex.App.2000), has been unanimously rejected, even in a later opinion by a division of the same court. See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365 (Tex.App.2004) (review granted Mar. 11, 2005) (adopting opt out interpretation).

However, once this interpretation is rejected, it becomes, in my opinion, irrelevant whether the acknowledgment or the opt out view of the meaning of the proviso is adopted; even if the opt out interpretation is considered the correct one, the courts of this state would still have jurisdiction to entertain private claims under the TCPA, because the Colorado General Assembly has taken no steps to limit the courts’ jurisdiction.

The jurisdiction of the district courts in this state is established by the Colorado Constitution. Colo. Const. art. VI, § 9(1), provides: “The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law ” (emphasis supplied).

This provision grants jurisdiction that “is unlimited, both geographically and substantively.” People v. Higa, 735 P.2d 203, 205 (Colo.App.1987). Hence, even if the General Assembly has not authorized the exercise of a particular judicial function, this constitutional provision empowers the courts to act. In re A.W., 637 P.2d 366 (Colo.1981)(even without statutory authorization, district court has jurisdiction respecting mental incompetent).

The authority of the General Assembly to limit the geographical jurisdiction of any specific district court, without affecting the overall jurisdiction of the district courts collectively, has been recognized. State v. Borquez, 751 P.2d 639 (Colo.1988)(statute limiting appeal of automobile license revocation order to district court of county of driver’s residence); see People v. Higa, supra (statute did not limit court’s authority to conduct closing arguments and jury deliberations outside county seat).

Likewise, the General Assembly may limit the district court’s jurisdiction by granting jurisdiction to another court that the constitution authorized it to create. People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1924).

Whether that legislative body may restrict or limit the broad substantive jurisdiction over “all civil ... cases” granted by the constitution to the district courts by preventing all of them from passing upon otherwise cognizable civil claims has yet to be decided. However, even if it is assumed that the General Assembly possesses such authority, it may limit the courts’ jurisdiction only by the use of plain, clear, and explicit language. See State v. Borquez, supra; People v. Higa, supra.

We must, therefore, apply this standard of explicitness in considering whether the General Assembly intended to deprive all Colorado district courts of jurisdiction to hear private claims under the TCPA.

The TCPA was enacted in 1991, and in 1997 the Colorado General Assembly first enacted legislation dealing with unsolicited fax transmissions. Colo. Sess. Laws 1997, ch. 133, § 6-1-105(1)(I) at 500, provided:

A person engages in a deceptive trade practice when, in the course of such person’s business ... such person solicits a consumer residing in Colorado by a facsimile transmission without including in the facsimile message a toll-free telephone number which a recipient of the unsolicited transmission may use to notify the sender not to transmit to the recipient any further unsolicited transmission.

In 1999, this statute was amended in a manner not relevant here, Colo. Sess. Laws 1999, ch. 188, § 6-1-702(1)(b)(I) at 642. In 2004, however, the General Assembly expressly referred to the TCPA by providing: “A person engages in a deceptive trade practice when, in the course of such person’s business, vocation, or occupation, such person ... [violates 47 U.S.C. sec. 227 [the TCPA] or any rule promulgated thereunder.” Section 6-1-702(1)(c), C.R.S.2004.

The trial court recognized that, by enacting the 2004 statute, the General Assembly expressly authorized the prosecution of private TCPA claims in the Colorado courts. However, the initial Colorado statute was adopted after the passage of the TCPA, and it contained provisions less restrictive than the federal act: unsolicited faxes could be sent, so long as a toll-free number was included in the fax allowing the recipient to prohibit further transmissions. For these reasons, the trial court concluded that the effect of this initial 1997 act was to deprive all district courts of jurisdiction over private TCPA claims. I disagree with this conclusion.

First, while Congressional authority over interstate commerce deprives the states of the authority to enact any inconsistent legislation, Middleton v. Hartman, 45 P.3d 721, 731 (Colo.2002), Congress authorized the states to adopt legislation containing “more restrictive intrastate requirements or regulations” than contained in the TCPA. 47 U.S.C. § 227(e)(1)(A). Yet, nothing in the TCPA purports to authorize the states to adopt less restrictive regulations governing interstate commerce. Therefore, the original state statute was, at best, applicable only to purely intrastate transmissions. Even after the adoption of the state statute, the substantive provisions of the TCPA continued to regulate all interstate transmissions, and the Colorado Attorney General could enforce the TCPA’s prohibitions through legal action in the federal courts. 47 U.S.C. § 227(f)(1); Murphey v. Lanier, 204 F.3d 911 (9th Cir.2000). Hence, the only possible effect that the initial statute could have had upon interstate transmissions relates to the proper forum for the prosecution of a private claim for violation of the TCPA.

Second, the 1997 statute contained no provisions whatsoever expressly addressing this question or referring to the TCPA. The only basis for asserting that this original statute restricted the remedies available to Colorado residents under the TCPA is the substantive difference between its regulations and those of the TCPA. Yet, it is just as logical, if not more so, to conclude that the General Assembly intended only to regulate intrastate transmissions differently from interstate transmissions than to assume that this regulatory difference was also intended to restrict the jurisdiction of the Colorado courts under the federal act. Indeed, other courts have recognized that a mere substantive difference between the TCPA and a state statute does not operate as an opt out election. See, e.g., R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 382 Md. 689, 857 A.2d 1 (2004); Mulhern v. MacLeod, 441 Mass. 754, 808 N.E.2d 778 (2004); Chair King, Inc. v. GTE Mobilnet of Houston, Inc., supra.

Finally, even if it is assumed that the General Assembly has the authority to limit the substantive jurisdiction granted by the Colorado Constitution to the district courts, any intent to do so must be plain and explicit. State v. Borquez, supra; People v. Higa, supra. The initial statute here did not, by any means, express any such plain or explicit intent. This statute cannot, therefore, be interpreted as depriving the Colorado district courts of their constitutional jurisdiction to entertain private claims for alleged violations of the TCPA.

I conclude, therefore, that the issue whether the “if otherwise permitted” proviso in the TCPA was merely an acknowledgment that the states need not adopt special procedural rules for private TCPA actions or allowed states to opt out of state court enforcement of the TCPA through private actions need not be resolved in this case. In either event, the Colorado General Assembly has never elected to opt out of these enforcement proceedings, and the Colorado courts have always possessed jurisdiction to adjudicate such private claims.