Erienet, Inc. Sandra MacKenzie John Knauer Frank Mezler, Jr. v. Velocity Net, Inc. Thomas Dylewski Chad Ferenack

*521 ALITO, Circuit Judge,

dissenting:

It is undisputed that the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 , a federal statute, creates a private right of action on behalf of a person or entity victimized by telemarketing abuse. Such an action is plainly one “arising under the ... laws ... of the Unites States” within the meaning of 28 U.S.C. § 1381 , the general federal question jurisdiction statute. The majority, however, holds that the district courts do not have jurisdiction to entertain private TCPA actions under section 1331 because 47 U.S.C § 227(b)(3) in effect divests the federal courts of jurisdiction. But section 227(b)(3) says nothing about the jurisdiction of the federal district courts; instead, it says merely that an action under that provision “may” be brought in an appropriate state court “if otherwise permitted by the laws or rules of court of’ that state. More than this, it seems to me, is needed to divest a federal district court of its jurisdiction under section 1331. Indeed, I think that the Supreme Court’s decision in Tafflin v. Levitt, 493 U.S. 455 , 110 S.Ct. 792 , 107 L.Ed.2d 887 (1990), clearly shows that the majority has erred. I therefore respectfully dissent.

In Tafflin , the Supreme Court interpreted the following provision from the federal RICO statute:

Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court.

18 U.S.C. § 1964 (emphasis added). The Court found that this language was insufficient to divest state courts of concurrent jurisdiction over private RICO actions, explaining:

[The statute’s] grant of federal jurisdiction is plainly permissive, not mandatory, for the statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described “may” be brought in the federal district courts, not that they must be.

Tafflin, 493 U.S. at 460-61 , 110 S.Ct. at 796 (internal quotations omitted). Applying this reasoning to the instant case, it is clear that the language of the TCPA is insufficient to divest district courts of their federal question jurisdiction, as the statute merely provides that private suits “may” be brought in state court. See 47 U.S.C. § 227 (b)(3).

The majority, however, declines to apply the reasoning of Tafflin on the ground that Tafflin concerned divestment of state court jurisdiction whereas this case concerns divestment of federal court jurisdiction. According to the majority, because “[s]tate courts are courts of general jurisdiction, while federal courts are courts of only limited jurisdiction[,] ... [t]he permissive authorization of jurisdiction in state courts does not imply that jurisdiction is also authorized in federal courts.” 1 Maj. Op. at 516. This observation, while entirely accurate, is irrelevant to the issue before us. The appellants are not arguing that the TCPA authorizes federal jurisdiction by implication. Rather, the appellants simply maintain that the TCPA does not divest district courts of the federal question jurisdiction they already possess under 28 U.S.C. § 1331 . 2 Although the majority eventually confronts this issue in Part IIB of its opinion, it fails to explain adequately why it does not apply the Tafflin Court’s divestment analysis. 3

*522 By sidestepping Tafflin , the majority is able to conclude that Congress’s reference to state courts in the TCPA “must reflect something other than a mere confirmation of concurrent jurisdiction.” Maj. Op. at 516. The Fourth and Fifth Circuits have likewise found it “meaningful that Congress explicitly mentioned only state courts” since “mentioning state courts is unnecessary to vest them with concurrent jurisdiction.” International Science, 106 F.3d at 1152. See Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 512 (5th Cir.1997). The problem with this view is that it is inconsistent with the Supreme Court’s decision in Tafflin . Just as it was unnecessary for Congress to mention state courts in the TCPA in order to vest them with concurrent jurisdiction, it was unnecessary for Congress to mention federal district courts in the RICO statute in order to vest them with concurrent jurisdiction. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the ... laws ... of the United States.”). Nevertheless, the Tafflin Court concluded that the RICO statute’s explicit mention of district courts was not “meaningful” enough to vest them with exclusive jurisdiction. I would similarly conclude that the TCPA’s explicit mention of state courts is not meaningful enough to vest them with exclusive jurisdiction.

The Supreme Court has long abided by the “general rule that the grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive.” United States v. Bank of New York & Trust Co., 296 U.S. 463, 479 , 56 S.Ct. 343 , 80 L.Ed. 331 (1936). Consistent with this principle, the Tafflin Court concluded that the RICO statute’s permissive grant of jurisdiction to federal district courts did not constitute an “explicit statutory directive” sufficient to divest state courts of their inherent federal question jurisdiction. 493 U.S. at 460-61 , 110 S.Ct. 792 . Likewise, I would hold that the TCPA’s permissive grant of jurisdiction to state courts does not constitute an “explicit statutory directive” sufficient to divest district courts of their section 1331 federal question jurisdiction.

Notwithstanding the lack of a clear textual divestment in the TCPA, the Supreme Court has instructed that jurisdiction can also be divested “by unmistakable implication from legislative history.” Tafflin, 493 U.S. at 460 , 110 S.Ct. 792 . In this regard, the majority finds that Senator Hollings’s statement reveals Congress’ clear intention to grant exclusive jurisdiction to the state courts. I disagree. I do not believe that one speech given by one senator is sufficient to demonstrate the “unmistakable” intent of Congress. Moreover, even if Senator Hollings’s statement were given controlling weight, it merely indicates that the TCPA was designed to “allow consumers to bring an action in State court.” 137 Cong. Rec. S16205 (daily ed. Nov. 7, 1991) (emphasis added). The Senator explained that giving consumers the option of going to small claims court would enable them to seek modest damages without incurring the high costs of formal litigation. Id. However, the Senator said nothing about preventing corporate adversaries who are battling over large sums of money from choosing to go to federal court. Therefore, I would not conclude that Senator Hollings’s statement does anything more than confirm the permissive grant of state jurisdiction found in the statute’s text.

I am also unconvinced by the majority’s contention that the overall statutory scheme of the TCPA supports its finding of exclusive state court jurisdiction. The majority first notes that another section of the TCPA specifically “mandates exclusive federal court jurisdiction over TCPA actions brought by states on behalf of their residents.” Maj. Op. at 517 (citing 47 U.S.C. § 227 (f)(2)). I agree that this explicit grant of exclusive jurisdiction is significant, but I believe that it cuts against the majority’s conclusion. Section 227(f)(2) reveals that, while drafting the TCPA, Congress knew full well how to grant exclusive jurisdiction with mandatory language. The most natural interpretation of Congress’ failure to use similar language in section 227(b)(3) is that Congress did not intend to grant exclusive jurisdiction in that section.

The majority also relies on sections 227(f)(4) and 227(f)(7) of the TCPA, which *523 specifically address venue, service of process, and possible conflicts between federal and state enforcement efforts. The majority finds significance in the fact that these issues are not discussed in connection with the private right of action granted by section 227(b)(3). However, since the general rules governing venue and service of process in the district courts are well established, see 28 U.S.C. § 1391 (b); Fed. Rules Civ. Proc. 4, 4.1, there was no need for Congress to reiterate them in section 227(b)(3). The fact that venue and service of process are discussed in section 227(f)(4) and not section 227(b)(3) simply indicates that Congress wished to make adjustments to the general rules in the former section and not the latter. As for the conflict provision that appears in section 227(f) but not section 227(b)(3), it is hardly surprising that Congress would be concerned about agency conflicts in the section of the TCPA dealing with official state enforcement efforts but not in the section governing private lawsuits.

Finally, the majority points to other provisions in the Communications Act in which Congress expressly provided for concurrent jurisdiction. According to the majority, these provisions render Congress’ “failure to provide for concurrent jurisdiction under § 227(b)(3) ... significant.” Maj. Op. at 517-518. However, because these provisions of the Communications Act were not passed contemporaneously with the TCPA, they shed little light on the intent of , Congress at the time of the TCPA’s passage. .

In the end, the majority fails to give any convincing reason for finding that the permissive grant of jurisdiction to state courts in the TCPA divests district courts of the jurisdiction they possess under 28 U.S.C. § 1331 . Moreover, by rejecting the applicability of the Supreme Court’s reasoning in Tafflin , the majority reaches the odd conclusion that divestments of federal court jurisdiction over federal claims should be more easily found than divestments of state court jurisdiction over federal claims. In light of the longstanding and explicit grant of federal question jurisdiction in 28 U.S.C. § 1331 , I would instead conclude that a divestment of district court jurisdiction should be as reluctantly found as a divestment of state court jurisdiction. Accordingly, I dissent.

. See also International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1151-52 (4th Cir.1997) ("If a statute authorizes suit in state courts of general jurisdiction through the use of the term 'may,' that authorization cannot confer jurisdiction on a federal court because federal courts are competent to hear only those cases specifically authorized.”).

. In light of the fact that district courts have possessed general federal question jurisdiction since 1875, see Schweiker v. Chilicky, 487 U.S. 412, 420 , 108 S.Ct. 2460 , 101 L.Ed.2d 370 (1988), I am somewhat puzzled by the majority's reliance on "well-established principles reflecting a reluctance to find federal jurisdiction unless it is clearly provided for.” Maj. Op. at 519.

.The majority's reliance on the divestment analysis in Public Util. Comm’r v. Bonneville Power Admin., 767 F.2d 622 , 627 (9th Cir.1985), is misplaced. The statute at issue in Bonneville, unlike the TCPA, contained mandatory language assigning jurisdiction to another court. See id. at 626 (quoting 16 U.S.C. § 839f(e)(5) ("Suits ... shall be filed in the United States court of appeals for the region.”)) (emphasis added).