THOMAS MULHERN vs. JOHN G. MACLEOD. [Note 1]

MARSHALL, C.J. We consider in this case whether an individual may commence a private action in a Massachusetts State court against telemarketers who violate a Federal statute, the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 (2000), as amended. The appeal arises from the decision

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of a judge in the Superior Court to dismiss for lack of subject matter jurisdiction a class action alleging violations of 47 U.S.C. § 227, filed by the plaintiff, Thomas Mulhern, against the defendant, John G. MacLeod, doing business as ABC Mortgage Company (ABC).

The facts giving rise to this appeal may be summarized briefly. Between December 26, 2000, and January 28, 2002, ABC sent fifteen unsolicited mortgage advertisements to the plaintiff by facsimile transmission, despite receiving a letter from the plaintiff on January 25, 2001, asking ABC to cease doing so. On October 16, 2002, the plaintiff filed suit against ABC, alleging violation of 47 U.S.C. § 227(b)(1)(C), [Note 2] the provision of the TCPA that prohibits sending unsolicited facsimile advertisements. He claimed the right to bring his action under 47 U.S.C. § 227(b)(3), [Note 3] which provides a private right of action in State court for violations of TCPA "if otherwise permitted by the laws or rules of court of a State." ABC filed a motion to dismiss the complaint for lack of subject matter jurisdiction arguing that the language "if otherwise permitted by the laws or rules of court of a State," requires that State courts exercise jurisdiction over private TCPA claims if, and only if, a State Legislature has enacted an "opt in" statute expressly permitting its courts to do so. The General Court of the Commonwealth has not enacted such legislation. The Superior Court judge agreed with ABC, and dismissed the complaint. We granted the plaintiff's application for direct appellate review.

We conclude that 47 U.S.C. § 227(b)(3) does not require a State to pass enabling legislation before private claims may be brought in its State courts. We vacate the dismissal of the

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complaint and remand the matter to the Superior Court for further proceedings consistent with this opinion. [Note 4]

Discussion. The plaintiff argues that Federal law must be enforced by State courts absent Congress's clear intent to the contrary, and that the language "if otherwise permitted by the laws or rules of court of a State" is nothing more than a recognition by Congress that litigants must comply with State procedural rules when pursuing Federal claims in State courts. The plaintiff also points out that the majority of State courts to consider this issue have rejected ABC's interpretation of the statute. We agree with the decisions of those courts that have rejected an "opt in" interpretation of the TCPA.

"Federal law is enforceable in state courts . . . because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws 'the supreme Law of the Land,' and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure." Howlett v. Rose, 496 U.S. 356, 367 (1990). The obligation on State courts to hear Federal causes of action is not self-imposed by enabling legislation, but arises under the supremacy clause. See id. We therefore begin with the presumption that Federal causes of action are enforceable in the courts of the Commonwealth. See Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981) ("In considering the propriety of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction").

In Gulf Offshore Co. v. Mobil Oil Corp., supra, the Supreme Court said that the presumption of concurrent jurisdiction can

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be rebutted by "an explicit statutory directive," an "unmistakable implication from legislative history," or by "a clear incompatibility between state-court jurisdiction and federal interests." Presumptive State court jurisdiction is compelling where, as under the TCPA, private litigants have no recourse to Federal courts. [Note 5], [Note 6]

With those principles in mind, we turn to the language of the statute and its legislative history. The defendant argues that the text of the provision in question, "if otherwise permitted by the laws or rules of court of a State," 47 U.S.C. § 227(b)(3), expressly contemplates enabling legislation, and that remarks by Senator Ernest F. Hollings, the sponsor of the bill, are consistent with this interpretation. We do not agree with either point. The quoted language is far from "an explicit statutory directive" that States must pass enabling legislation. Gulf Offshore Co. v. Mobil Oil Corp., supra at 478. At a minimum, Congress authorized such law suits "if otherwise permitted" by the "rules of court of a State," a circumstance in which enabling legislation could not have been contemplated. The "if otherwise permitted" language was more likely intended to reflect that Federal claims remain subject to State procedural law: Congress is no doubt aware of the Supreme Court's long-standing recognition that States "have great latitude to establish the structure and jurisdiction of their own courts" and "may apply their own neutral procedural rules to federal claims, unless those rules are pre-empted by federal law" (citations omitted). Howlett v. Rose, supra at 372. The TCPA was crafted to accommodate State

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interests, [Note 7] while respecting the structure, jurisdiction, and procedural rules of State courts.

Our interpretation is confirmed, not undermined, by Senator Hollings's comments. 137 Cong. Rec. S16204-01, S16205-S16206. After explaining that the bill included a private right of action provision, the Senator said:

"The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court. . . . I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill." (Emphasis added.) Id.

The defendant focuses solely on the last sentence, ignoring that the Senator's remarks are directed to the particular venue in each State for which actions could most beneficially be brought under the TCPA. The Senator apparently considered actions by private litigants an important enforcement mechanism. He therefore expressed his "hope" that, applying their own procedural rules, the States would permit actions to be brought in a forum that would not impose heavy costs on the plaintiffs, such as small claims courts. [Note 8] Id. at S16205. We see nothing in these comments, or in any of the other aspects of the legislative

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history, that creates an "unmistakable implication," Gulf Offshore Co. v. Mobil Oil Corp., supra at 478, that a State must pass enabling legislation before its courts can exercise jurisdiction over individual enforcement actions. [Note 9] See 137 Cong. Rec. S16204 (1991); S. Rep. No. 102-178, 102d Cong., 1st Sess. (1991), reprinted in 1991 U.S.C.C.A.N. 1968.

Our decision is in accord with nearly all of the other State courts that have considered this issue. See, e.g., Lary v. Flasch Business Consulting, So. 2d (No. 2020803) (Ala. Civ. App. 2003); Kaufman v. ACS Sys., Inc., 110 Cal. App. 4th 886 (2003); Condon v. Office Depot, Inc., 855 So. 2d 644 (Fla. Dist. Ct. App. 2003); Hooters of Augusta, Inc. v. Nicholson, 245 Ga. App. 363 (2000); Zelma v. Market U.S.A., 343 N.J. Super. 356 (App. Div. 2001); Schulman v. Chase Manhattan Bank, 268 A.D. 2d 174 (N.Y. 2000); Chair King, Inc. v. GTE Mobilnet of Houston, Inc., S.W.3d (No. 14-00-00711-CV) (Tex. Ct. App. 2004). But see R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 149 Md. App. 219, cert. granted, 374 Md. 358 (2003); Autoflex Leasing, Inc. v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815 (Tex. Ct. App. 2000). [Note 10]

Decisions by several circuit courts of the United States Court of Appeals regarding private actions under the TCPA are also

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instructive. Those cases have dealt primarily with whether private TCPA claims may be brought in Federal court. See, e.g., Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir. 1997). In some of those cases, litigants had argued that conferring exclusive State jurisdiction over TCPA claims would violate the Tenth or Fourteenth Amendments to the United States Constitution. See, e.g., Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Servs., Ltd., 156 F.3d 432 (2d Cir. 1998); International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997). In uniformly rejecting such arguments, at least two Federal courts have concluded that States may themselves refuse to exercise jurisdiction over private TCPA claims. See Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Servs., Ltd., supra at 438 ("To the extent that a state decides to prevent its courts from hearing private actions to enforce the TCPA's substantive rights the existence of a private right of action under the TCPA could vary from state to state"); International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., supra at 1156 ("states may refuse to exercise the jurisdiction authorized by the statute"). We need not decide whether the "if otherwise permitted" language does indeed permit States to refuse jurisdiction over private TCPA claims, i.e., to "opt out" of the Federal enforcement provisions. To the extent there is any merit to that claim, we are aware that in 2002 the General Court enacted the Telemarketing Solicitation Act, G. L. c. 159C, inserted by St. 2002, c. 265, § 1. We presume that the Massachusetts Legislature was aware of the TCPA when it enacted G. L. c. 159C, which itself regulates telemarketing solicitation, including unsolicited facsimile transmissions. Commonwealth v. Russ R., 433 Mass. 515, 520 (2001) ("the Legislature is presumed to be aware of existing statutes when it amends a statute or enacts a new one"). General Laws c. 159C, § 13, provides that the "remedies, duties, prohibitions and penalties provided in this chapter shall not be exclusive and shall be in addition to all other causes of action, remedies and penalties provided by law." "[O]ther causes of action, remedies, and penalties" would surely encompass violations of Federal law. At the very least G. L. c. 159C, § 13, demonstrates that the Legislature has affirmatively

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chosen not to close the Commonwealth's courts to private TCPA claims. [Note 11]

Conclusion. The Superior Court is competent to hear the plaintiff's claim. See Administrator of the Office of Price Admin. v. Chook, 320 Mass. 187, 190 (1946) (Superior Court may determine rights based in Federal law if it has jurisdiction to decide rights of like character and class). We vacate the dismissal of the complaint and remand the matter to the Superior Court for further proceedings consistent with this opinion.

So ordered.