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Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0142p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - PHILIP CHARVAT, - Plaintiff-Appellant, - - No. 08-3282 v. , > - Defendant-Appellee. - GVN MICHIGAN, INC., N Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 06-00983—Algenon L. Marbley, District Judge. Argued: January 20, 2009 Decided and Filed: April 9, 2009 Before: MOORE, CLAY, and KETHLEDGE, Ci
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0142p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - PHILIP CHARVAT, - Plaintiff-Appellant, - - No. 08-3282 v. , > - Defendant-Appellee. - GVN MICHIGAN, INC., N Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 06-00983—Algenon L. Marbley, District Judge. Argued: January 20, 2009 Decided and Filed: April 9, 2009 Before: MOORE, CLAY, and KETHLEDGE, Cir..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0142p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
PHILIP CHARVAT,
-
Plaintiff-Appellant,
-
-
No. 08-3282
v.
,
>
-
Defendant-Appellee. -
GVN MICHIGAN, INC.,
N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 06-00983—Algenon L. Marbley, District Judge.
Argued: January 20, 2009
Decided and Filed: April 9, 2009
Before: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: John W. Ferron, FERRON & ASSOCIATES, Columbus, Ohio, for Appellant.
James B. Hadden, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for
Appellee. ON BRIEF: John W. Ferron, Jessica G. Fallon, Lisa A. Wafer, FERRON &
ASSOCIATES, Columbus, Ohio, for Appellant. James B. Hadden, PORTER, WRIGHT,
MORRIS & ARTHUR, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Philip Charvat
appeals the district court’s grant of partial summary judgment to Defendant-Appellee GVN
Michigan, Inc. (“GVN”) and subsequent dismissal for lack of subject-matter jurisdiction.
After GVN and its agents placed ten telemarketing calls to Charvat’s residence, Charvat filed
a complaint in the district court asserting 186 claims against GVN based on alleged
violations of the federal Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C.
1
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 2
§ 227, the Ohio Consumer Sales Practices Act (“CSPA”), Ohio Rev. Code
§§ 1345.01–1345.13, and various other Ohio statutes and regulations. The district court
found that Charvat could not recover statutory damages under the TCPA or the CSPA based
on alleged violations occurring in the first phone call made by GVN and that Charvat was
limited under both the TCPA and the CSPA to recovery of statutory damages on a per-call
basis rather than per violation. Noting that the TCPA does not provide for federal-question
jurisdiction, the district court found that these limitations on damages reduced the amount
in controversy below $75,000 and dismissed Charvat’s case for lack of subject-matter
jurisdiction. On appeal, Charvat argues that the district court erred by (1) dismissing all of
Charvat’s claims for violations of the TCPA and the CSPA committed during the first call,
(2) holding that damages for violations of the TCPA must be calculated on a per-call, rather
than a per-violation, basis, (3) holding that damages for violations of the CSPA must be
calculated on a per-call, rather than a per-violation, basis, and (4) dismissing Charvat’s
action for lack of subject-matter jurisdiction. Although we believe that the district court
erred in finding that Charvat could not collect under the TCPA for violations occurring in
the first telephone call, we conclude that the district court correctly found that the TCPA
damages are available on only a per-call basis. Because Charvat did not meet the amount-in-
controversy requirement for diversity jurisdiction, we AFFIRM the district court’s judgment
dismissing the case for lack of subject-matter jurisdiction.
I. BACKGROUND
Charvat spends over twenty-six pages of his brief detailing each of the ten phone
calls allegedly made by GVN or its agents and outlining each of the 186 violations asserted.
The details of each phone call and each violation, however, are not in dispute for purposes
of summary judgment and are not relevant to the issues before us. The district court
provided a brief summary of the underlying facts:
On May 28, 2005, an agent of GVN placed its first telemarketing
call to Charvat’s residence (the “First Call”), soliciting the Plaintiff to attend
a sales presentation in which he would be invited to purchase travel and
vacation services from GVN. As has been his practice for several years,
Plaintiff recorded the call and later prepared a transcript from the recording.
At the conclusion of the First Call, Plaintiff demanded that the caller not call
him again, and the agent responded that he would take Charvat “off the list.”
Despite this confirmation, GVN placed nine more telemarketing calls to
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 3
Charvat’s residence, all of which Plaintiff recorded. In three of these calls,
Charvat did not actually speak with anyone, as the agent immediately hung
up when Charvat answered the phone. In the six other calls, however,
Charvat demanded again that his name and telephone number be placed on
the Defendant’s Do-Not-Call List, and he asked that the agent send him a
copy of GVN’s Do-Not-Call Policy. After the tenth call, on September 14,
2006, GVN ceased calling Charvat’s residence.
Charvat v. GVN Mich., Inc., 531 F. Supp. 2d 922, 923-24 (S.D. Ohio 2008).
On November 20, 2006, Charvat filed a complaint in the United States District Court
1
for the Southern District of Ohio, asserting 187 claims against GVN and three
unidentified defendants. The complaint alleged that the ten phone calls placed by GVN
and its agents violated the TCPA and its regulations, the CSPA, the Ohio Telephone
Sales Solicitation Act (“TSSA”), Ohio Rev. Code §§ 4719.01–4719.18, and various
provisions of the Ohio Administrative Code in 186 ways. Charvat alleges that each call
contained numerous violations of these statutes and regulations by GVN, including, for
example, failure voluntarily to provide the caller’s telephone number, failure to record
Charvat’s name and number on GVN’s do-not-call list, failure of GVN to train its
representatives in the maintenance and use of its do-not-call list, failure to maintain a
record of Charvat’s demand to be placed on the do-not-call list, failure to state, at the
beginning of the call, that the purpose of the call was to make a sale, and failure of GVN
to obtain a certificate of registration from the Ohio Attorney General before acting as a
telephone solicitor. The complaint alleged that federal subject-matter jurisdiction was
proper under 28 U.S.C. § 1332 because the parties were completely diverse and the
amount in controversy exceeded $75,000. GVN subsequently filed a motion for partial
summary judgment, conceding that its agents placed the ten phone calls but arguing that
Charvat was limited in the number of statutory damage claims he could assert under the
TCPA and the CSPA.
On January 5, 2008, the district court issued an order granting GVN’s motion for
partial summary judgment, finding that Charvat could not recover statutory damages
1
Charvat asserts 187 claims: 186 based on specific statutory violations and one for a declaratory
judgment.
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 4
under either the TCPA or the CSPA for the first of the ten calls and that Charvat could
recover statutory damages under the TCPA and the CSPA only on a per-call basis, rather
than per violation. GVN, 531 F. Supp. 2d at 925-29. Because Charvat could no longer
meet the amount in controversy requirement of 28 U.S.C. § 1332, the district court sua
sponte dismissed the action for lack of subject-matter jurisdiction.
Id. at 929-30.
II. ANALYSIS
The district court dismissed Charvat’s case for lack of subject-matter jurisdiction
for failure to meet the amount-in-controversy requirement for diversity jurisdiction,
finding that the TCPA and the CSPA limited statutory damages to one award per call
after the first call. We conclude that the district court did not err in finding that the
TCPA limits statutory damages to recovery on a per-call basis. Because this limitation
makes it legally certain that Charvat cannot recover over $75,000, and because Charvat
has asserted no other basis for subject-matter jurisdiction either in his complaint or on
appeal, the district court did not err in dismissing Charvat’s claims for lack of diversity
subject-matter jurisdiction.2
2
Charvat’s complaint asserts subject-matter jurisdiction solely on the basis of the diversity statute,
28 U.S.C. § 1332. At no point in the proceedings has Charvat argued that another basis of jurisdiction,
such as federal-question jurisdiction under 28 U.S.C. § 1331, is applicable. The district court noted that
federal-question jurisdiction was not available over private TCPA claims because Congress created a
private right of action in state court. GVN, 531 F. Supp. 2d at 925.
We note that the existence or non-existence of federal-question jurisdiction over private TCPA
claims is not a settled question. Although six federal circuit courts have concluded that federal courts do
not have federal-question jurisdiction over private TCPA claims, Murphey v. Lanier, 204 F.3d 911, 915
(9th Cir. 2000); Foxhall Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd.,
156 F.3d 432, 435
(2d Cir. 1998); ErieNet, Inc. v. Velocity Net, Inc.,
156 F.3d 513, 519 (3d Cir. 1998); Nicholson v. Hooters
of Augusta, Inc.,
136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston Cellular Corp.,
131
F.3d 507, 514 (5th Cir. 1997); Int’l Sci. & Tech. Inst., Inc. v. Inacom Commc’ns, Inc.,
106 F.3d 1146, 1156
(4th Cir. 1997), a decision from the Seventh Circuit and then-Judge Alito’s dissent from a Third Circuit
opinion raise serious questions about the majority view, Brill v. Countrywide Home Loans, Inc.,
427 F.3d
446, 450-51 (7th Cir. 2005) (Easterbrook, J., joined by Posner & Rovner, J.J.);
ErieNet, 156 F.3d at 521-23
(Alito, J., dissenting). Because, however, Charvat did not assert federal-question jurisdiction in his
complaint and has not contested the district court’s statement that federal-question jurisdiction was not
present, we will not address this question here. See Golden v. Comm’r,
548 F.3d 487, 493 (6th Cir. 2008)
(concluding that argument not raised in opening brief was forfeited).
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 5
A. Standard of Review
“When a decision on subject-matter jurisdiction concerns pure questions of law
or application of law to the facts, this court conducts a de novo review.” Mikulski v.
Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (en banc). Because the
district court’s decision was based on pure legal questions and the facts are undisputed
for purposes of this appeal, we do not apply the more deferential standard applicable to
the district court’s factual findings. See
id. at 560 (“If the district court’s jurisdictional
ruling was based on the resolution of factual disputes, then we review those findings for
clear error.”). “‘The party opposing dismissal has the burden of proving subject matter
jurisdiction.’” Lacey v. Gonzales,
499 F.3d 514, 518 (6th Cir. 2007) (quoting GTE
North, Inc. v. Strand,
209 F.3d 909, 915 (6th Cir.), cert. denied,
531 U.S. 957 (2000)).
B. Subject-Matter Jurisdiction
1. Standard for Determining Diversity Jurisdiction
“[I]t is familiar law that a federal court always has jurisdiction to determine its
own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002); accord
Lacey, 499
F.3d at 518. For purposes of this appeal, we will assume without deciding that a federal
court has diversity jurisdiction over private TCPA claims under § 1332 if the
requirements of the diversity statute are met. Cf. Gene & Gene LLC v. Biopay LLC,
541
F.3d 318, 324 & n.6 (5th Cir. 2008); US Fax Law Cntr., Inc. v. iHire, Inc.,
476 F.3d
1112, 1116-18 (10th Cir. 2007); Gottlieb v. Carnival Corp.,
436 F.3d 335, 337-43 (2d
Cir. 2006); Brill v. Countrywide Home Loans, Inc.,
427 F.3d 446, 450-51 (7th Cir.
2005). We do not decide this issue, however, because we conclude that the amount-in-
controversy requirement of § 1332 is not met in this case.
The diversity statute requires that “the matter in controversy exceed[] the sum
or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). To defeat
diversity jurisdiction, “[i]t must appear to a legal certainty that the claim is really for less
than the jurisdictional amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 289 (1938). Generally, the amount claimed by the plaintiff in the complaint rules,
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 6
as long as claimed in good faith, and “[e]vents occurring subsequent to the institution
of suit which reduce the amount recoverable below the statutory limit do not oust
jurisdiction.”
Id. Dismissal is proper, however, if the amount alleged in the complaint
was never recoverable in the first instance:
But if, from the face of the pleadings, it is apparent, to a legal certainty,
that the plaintiff cannot recover the amount claimed or if, from the
proofs, the court is satisfied to a like certainty that the plaintiff never was
entitled to recover that amount, and that his claim was therefore colorable
for the purpose of conferring jurisdiction, the suit will be dismissed.
Id.; see also Jones v. Knox Exploration Corp., 2 F.3d 181, 183 (6th Cir. 1993) (“[L]ack
of the jurisdictional amount from the outset—although not recognized until later—is not
a subsequent change that can be ignored.” (quoting 1 Moore’s Federal Practice
¶ 0.92[1] (2d ed. 1993))).
It appears to a legal certainty that “[a] claim is less than the jurisdictional amount
where the ‘applicable [] law bar[s] the type of damages sought by plaintiff.’” Rosen v.
Chrysler Corp., 205 F.3d 918, 921 (6th Cir. 2000) (quoting Wood v. Stark Tri-County
Bldg. Trades Council,
473 F.2d 272, 274 (6th Cir. 1973)) (third alteration in Rosen); see
also Samuel-Bassett v. Kia Motors Am., Inc.,
357 F.3d 392, 398 (3d Cir. 2004)
(concluding that “when the relevant facts are not in dispute . . . the District Court
[should] adhere to the ‘legal certainty’ test” and interpreting relevant substantive law to
determine amount of damages recoverable); 14B Charles Alan Wright et al., Federal
Practice and Procedure § 3702, at 98-99 & n.88 (3d ed. 1998 & Supp. 2008) (noting
that the legal-certainty test is met “when a specific rule of substantive law or measure
of damages limits the amount of money recoverable by the plaintiff”). Therefore, if the
measure of damages under the TCPA and the CSPA limits the total amount recoverable
by Charvat to $75,000 or less, diversity jurisdiction is not present.
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 7
2. Damages Available Under the TCPA
The Telephone Consumer Protection Act instructs the Federal Communications
Commission (“FCC”) to promulgate regulations “concerning the need to protect
residential telephone subscribers’ privacy rights to avoid receiving telephone
solicitations to which they object.” 47 U.S.C. § 227(c)(1). Pursuant to this directive, the
FCC has promulgated regulations prohibiting telemarketers from placing telephone calls
to residential telephone subscribers without following certain procedures. 47 C.F.R.
§ 64.1200(d).3 In addition to providing for enforcement by state attorneys general, 47
U.S.C. § 227(f), the TCPA creates a private right of action for enforcement of these
regulations:
3
The relevant regulation provides,
No person or entity shall initiate any call for telemarketing purposes to a residential
telephone subscriber unless such person or entity has instituted procedures for
maintaining a list of persons who request not to receive telemarketing calls made by or
on behalf of that person or entity. The procedures instituted must meet the following
minimum standards:
(1) Written policy. Persons or entities making calls for telemarketing
purposes must have a written policy, available upon demand, for
maintaining a do-not-call list.
(2) Training of personnel engaged in telemarketing. Personnel engaged
in any aspect of telemarketing must be informed and trained in the
existence and use of the do-not-call list.
(3) Recording, disclosure of do-not-call requests. If a person or entity
making a call for telemarketing purposes (or on whose behalf such a
call is made) receives a request from a residential telephone
subscriber not to receive calls from that person or entity, the person
or entity must record the request and place the subscriber’s name, if
provided, and telephone number on the do-not-call list at the time the
request is made. . . .
(4) Identification of sellers and telemarketers. A person or entity making
a call for telemarketing purposes must provide the called party with
the name of the individual caller, the name of the person or entity on
whose behalf the call is being made, and a telephone number or
address at which the person or entity may be contacted. . . .
....
(6) Maintenance of do-not-call lists. A person or entity making calls for
telemarketing purposes must maintain a record of a consumer’s
request not to receive further telemarketing calls. . . .
47 C.F.R. § 64.1200(d).
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 8
A person who has received more than one telephone call within any
12-month period by or on behalf of the same entity in violation of the
regulations prescribed under this subsection 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 violation of the regulations
prescribed under this subsection to enjoin such
violation,
(B) an action to recover for actual monetary loss from
such a violation, or to receive up to $500 in damages
for each such violation, whichever is greater, or
(C) both such actions.
It shall be an affirmative defense in any action brought under this
paragraph that the defendant has established and implemented, with due
care, reasonable practices and procedures to effectively prevent
telephone solicitations in violation of the regulations prescribed under
this subsection. If the court finds that the defendant willfully or
knowingly violated the regulations prescribed under this subsection, the
court may, in its discretion, increase the amount of the award to an
amount equal to not more than 3 times the amount available under
subparagraph (B) of this paragraph.
§ 227(c)(5).4
The amount of Charvat’s claim is based on the statutory-damages provisions of
the TCPA and the CSPA. In his complaint, Charvat asserts that he is entitled to damages
for 186 violations made during ten telephone calls: 63 violations of the TCPA and 123
violations of the CSPA. Based on these violations, his prayer for relief asserts statutory
treble damages of $1500 for each TCPA violation, § 227(c)(5), and statutory damages
of $200 for each CSPA violation, Ohio Rev. Code § 1345.09(B). If Charvat could
recover on a per-violation basis, as he argues, his total possible damages would be
approximately $94,500 under the TCPA and $24,600 under the CSPA, for a total of
4
Further, the TCPA does not preempt states from imposing more restrictive intrastate
requirements on telephone solicitations. 47 U.S.C. § 227(e)(1)(D). In Ohio, the Consumer Sales Practices
Act prohibits any “unfair or deceptive act or practice in connection with a consumer transaction,” Ohio
Rev. Code § 1345.02(A), which includes violations of the TCPA, see Charvat v. Cont’l Mortgage Servs.,
Inc., No. 99CVH12-10225, 2002 WL 1270183 (Ohio Ct. Common Pleas June 1, 2000). In addition to
covering violations of the TCPA, the CSPA also provides a remedy for violations of the TSSA and
regulations promulgated under the CSPA. Ohio Rev. Code § 1345.05(B)(2). Neither party disputes that
Charvat may collect for violations of both the TCPA and the CSPA.
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 9
$119,100. The district court found that both the TCPA and the CSPA limit damages to
one award per call after the first call, for an amount in controversy of $15,300. It is the
potential $94,500 in TCPA damages, however, that is driving the amount in controversy.
Therefore, if we conclude that the TCPA limits damages to one award of damages per
call, for a total of $15,000 in TCPA damages, we need not consider the limit of damages
under the CSPA, because, even assuming the full $24,600 sought under the CSPA, it
would be clear to a legal certainty that Charvat never could have recovered an amount
greater than $75,000.5 For that reason, we first consider the limits of statutory damages
under the TCPA.6
a. Damages Available for the First Call
We first note that the TCPA does not limit damages to those incurred after, but
not during, the first call. The statute allows “[a] person who has received more than one
telephone call within any 12-month period by or on behalf of the same entity in violation
of the regulations prescribed under this subsection” to bring an action for statutory
damages “for each such violation.” § 227(c)(5). We find this language unambiguous.
The requirement of being a “person who has received more than one telephone call” is
merely a threshold requirement that, once met, allows recovery for each call. Nowhere
does the language indicate that such a person may recover damages for “each such
violation” only after the first phone call. Even if the statute were ambiguous, we would
5
We note that reasonable attorney fees, when mandated or allowed by statute, may be included
in the amount in controversy for purposes of diversity jurisdiction. Williamson v. Aetna Life Ins. Co., 481
F.3d 369, 376 (6th Cir. 2007). Although Charvat’s complaint sought attorney fees under the CSPA and
the TSSA, Charvat neither asserts an amount of attorney fees to be awarded nor argues that the potential
attorney fees would increase the amount in controversy to more than $75,000. Because Charvat has
forfeited this argument by not raising it on appeal, we do not consider attorney fees when calculating the
amount in controversy. See
Golden, 548 F.3d at 493.
6
Because subject-matter jurisdiction was asserted here on the basis of diversity, the district court
applied Ohio law in interpreting the federal TCPA. GVN, 531 F. Supp. 2d at 925. Although, when sitting
in diversity, we apply state substantive law to state-law claims, this case presents a very different situation,
because the statute on which the claims are based is itself a federal statute. As we have noted, “the
applicability of state law depends on the nature of the issue before the federal court and not on the basis
for its jurisdiction.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 333-34 (6th Cir.
2007) (quoting Mallis v. Bankers Trust Co.,
717 F.2d 683, 692 n.13 (2d Cir. 1983)). The issue before us
is the interpretation of a federal statute. We therefore are not bound by decisions of the state courts of
Ohio interpreting the federal TCPA. See
Gottlieb, 436 F.3d at 343 n.8 (“It is odd, of course, that a federal
court sitting in diversity and considering a TCPA claim would apply federal substantive and procedural
law. This fact, however, only emphasizes the sui generis nature of the statute. It is the rare federal statute
that creates a cause of action that gives rise to jurisdiction under § 1332, but not under § 1331.”).
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 10
conclude that providing recovery for violations during the first phone call furthers the
purpose of the statute, to prevent consumers from receiving unwanted telemarketing
calls. Although Congress may have intended to prevent multiple phone calls, requiring
that the regulations be satisfied in the first phone call furthers that goal. For example,
the regulations require that telemarketers provide their name, the name of the entity on
whose behalf they are calling, and telephone number, presumably for the purpose of
allowing the consumer to make sure that the consumer’s request to be put on a do-not-
call list is honored. When a first call violating these requirements is followed by a
second call also violating the regulations, the statute authorizes damages for both
violations.
b. Damages Available for Each Call
The district court additionally concluded that the TCPA does not allow for the
award of statutory damages for each violation during a call, but instead limits statutory
damages to one award per call. Charvat argues that the district court misinterpreted
§ 227(c)(5) and misapplied the rules of statutory interpretation, and he urges us to follow
the dissent in Charvat v. Colorado Prime, Inc., No. 97APG09-1277, 1998 WL 634922
(Ohio Ct. App. Sept. 17, 1998).7 Several courts, however, have allowed recovery on
only a per-call basis, Colorado Prime,
1998 WL 634922, at *5; Charvat v. Echostar
Satellite, LLC, No. 2:07-cv-1000,
2008 WL 5274090, at *5 (S.D. Ohio Dec. 16, 2008);
Worsham v. Nationwide Ins. Co.,
772 A.2d 868, 876 n.5 (Md. Ct. Spec. App. 2001);
Szefczek v. Hillsborough Beacon, 668 A.2d, 1099, 1110 (N.J. Super. Ct. Law Div. 1995),
and Charvat cites no cases explicitly allowing for separate recoveries under the TCPA
for multiple violations during the same call.
7
Charvat also argues that finding against recovery on a per-violation basis is inconsistent with
another provision of the statute, § 227(b)(3), which deals with automated telephone equipment, because
the Ohio Court of Appeals has held that this provision allows for recovery on a per-violation basis. See
Charvat v. Ryan, 858 N.E.2d 845 (Ohio Ct. App. 2006). As the court in Ryan noted, however, the
language of § 227(b)(3) differs from that of § 227(c)(5), primarily because the former does not even
contain the word
“call.” 858 N.E.2d at 852. Further, as we have not yet interpreted § 227(b)(3), we need
not reconcile our interpretation of § 227(c)(5) with any previous interpretations of § 227(b)(3).
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 11
As noted above, the statute allows “[a] person who has received more than one
telephone call within any 12-month period by or on behalf of the same entity in violation
of the regulations prescribed under this subsection” to bring “(A) an action based on a
violation of the regulations prescribed under this subsection to enjoin such violation, or
(B) an action to recover for actual monetary loss from such a violation, or to receive up
to $500 in damages for each such violation, whichever is greater,” or both. § 227(c)(5).
We believe that this language unambiguously allows for statutory damages on only a
per-call basis. The term “each such violation” in subsection (B) refers to an antecedent
noun. Charvat argues that this term refers to the noun phrase “a violation of the
regulations” in subsection (A). Subsections (A) and (B), however, are two distinct
prongs of the statute, one governing injunctive relief and the other governing money
damages. For good reason, Congress may have intended to grant courts the power to
enjoin each individual violation of each component of the regulations while at the same
time allowing statutory damages to be awarded only once per call. We therefore believe
that, in interpreting the damages provision, we properly look back to any relevant
introductory language rather than language in a separate subsection governing the
entirely different avenue of injunctive relief. When we turn to the introductory statutory
language, the first stand-alone noun we encounter, looking back from “each such
violation,” is “call,” and indeed a specific type of call, namely a “telephone call . . . in
violation of the regulations.” Contrary to the suggestion of the Ohio Court of Appeals,
see Colorado Prime, 1998 WL 634922, at *5, “each such violation” cannot refer to the
phrase “in violation of the regulations,” because this phrase is not a noun but a
prepositional phrase modifying the noun “call.” Therefore, the term “each such
violation” must refer to “telephone call . . . in violation of the regulations,” and damages
are awardable on a per-call basis.8
8
We also note that this interpretation is supported by the legislative history of the TCPA.
Although we have found no legislative history directly addressing this issue, the statement of Senator
Hollings, a sponsor of one of the bills that would become the TCPA, indicates that the private right of
action was not intended to provide for multiple recoveries per call. Discussing the private right of action,
Senator Hollings noted that “[t]he provision would allow consumers to bring an action in State court,” and
“hope[d] that States will make it as easy as possible for consumers to bring such actions, preferably in
small claims court.” 137 Cong. Rec. S16204, S16205 (daily ed. Nov. 7, 1991) (statement of Sen.
Hollings). If plaintiffs could recover multiple damages awards per call, the amount claimed would very
quickly climb beyond the maximum amount allowable for small-claims-court jurisdiction and often beyond
No. 08-3282 Charvat v. GVN Michigan, Inc. Page 12
The relevant regulation confirms our analysis. Section 64.1200(d) states, “No
person or entity shall initiate any call for telemarketing purposes to a residential
telephone subscriber unless such person or entity has instituted procedures for
maintaining a list of persons who request not to receive telemarketing calls made by or
on behalf of that person or entity.” 47 C.F.R. § 64.1200(d). It then lists the “minimum
standards” for these procedures, including maintenance of a written do-not-call policy,
training of personnel, and recording of do-not-call requests. Id. The “violation of the
regulations” is therefore the initiation of the phone call without having implemented the
minimum procedures. Because, read in context, the statute and regulations focus on the
telephone call itself, we conclude that the district court did not err in holding that
Charvat cannot collect statutory damages on a per-violation basis under the TCPA.
Because of this limitation on damages under the TCPA, it is clear to a legal certainty that
Charvat cannot collect in excess of $75,000. Diversity jurisdiction is therefore not
present.
III. CONCLUSION
Because Charvat has not met the amount-in-controversy requirement for diversity
jurisdiction, and because Charvat does not argue that any other basis of subject-matter
jurisdiction is applicable, we AFFIRM the district court’s order dismissing the case for
lack of subject-matter jurisdiction.
the minimum amount necessary for federal-court diversity jurisdiction. “The amount of damages . . . is
set to be fair to both the consumer and the telemarketer.” Id. Recovery of damages for each specific
violation—for example separate awards for (1) not providing “the name of the individual caller,” (2) not
providing “the name of the person or entity on whose behalf the call is being made,” and (3) not providing
“a telephone number or address at which the person or entity may be contacted,” 47 C.F.R.
§ 64.1200(d)(4),—would upset this balance.
