Giovanniello v. ALM MEDIA, LLC

10-3854-cv
Giovanniello v. ALM Media, LLC

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2010

(Submitted: May 19, 2011 Decided: October 17, 2011)

Docket No. 10-3854-cv

EARLE GIOVANNIELLO, Individually and on Behalf of
All Others Similarly Situated,

Plaintiff-Appellant,
—v.—

ALM MEDIA, LLC,

Defendant-Appellee.
_________________

Before:
RAGGI, LOHIER, and WALLACE,* Circuit Judges.
_________________

Appeal from a judgment of the United States District Court for the District of

Connecticut (Janet Bond Arterton, Judge) dismissing as time-barred a putative class action

alleging violations of the Telephone Consumer Protection Act arising from the transmission

of an unsolicited advertisement to plaintiff by means of a telephone facsimile machine.

*
The Honorable J. Clifford Wallace of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.

1
 AFFIRMED.

Judge Wallace concurs in the judgment in a separate opinion.
______

TODD C. BANK, Esq., Kew Gardens, New York, for Plaintiff-Appellant.

ELIZABETH C. KOCH, CHAD R. BOWMAN, Levine Sullivan Koch & Schultz,
LLP, Washington, D.C., for Defendant-Appellee.

REENA RAGGI, Circuit Judge:

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 unsolicited commercial facsimile (“fax”) communications,

but permits such an action to be filed only within two years of the complained-of

transmission, see id. § 52-570c(d), we conclude that a TCPA action may be maintained only

as permitted by that state statute of limitations.

2
 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. 09 Civ. 1409 (JBA), 2010

WL 3528649, at *6 (D. Conn. Sept. 3, 2010). On appeal, Giovanniello asserts that 28 U.S.C.

§ 1658(a), rather than Conn. Gen. Stat. § 52-570c(d), is the applicable statute of limitations.

He submits, however, that the district court erred in finding that statute of limitations tolled

pursuant to American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), only through

dismissal of an earlier putative class action in the Southern District of New York based on

the same fax transmission, and not also through reconsideration or appeal of that judgment.

We need not address that issue because this TCPA action can be maintained only as

permitted by Connecticut law, see 47 U.S.C. § 227(b)(3), which we now clarify includes

Conn. Gen. Stat. § 52-570c(d). Accordingly, Giovanniello’s complaint is untimely even if

tolling were to be calculated as he urges.1

1
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

3
I. Background

A. The January 28, 2004 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).

B. The September 8, 2009 Filing

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

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., 554 F.3d 510, 519 (5th Cir. 2008); Bridges v. Dep’t of Md. State Police, 441 F.3d
197, 211 (4th Cir. 2006); Yang v. Odom, 392 F.3d 97, 102 (3d Cir. 2004); Culver v. City of
Milwaukee, 277 F.3d 908, 914 (7th Cir. 2002); Stone Container Corp. v. United States, 229
F.3d 1345, 1355-56 (Fed. Cir. 2000); Armstrong v. Martin Marietta Corp., 138 F.3d 1374,
1391 (11th Cir. 1998) (en banc); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir. 1988);
Fernandez v. Chardon, 681 F.2d 42, 48 (1st Cir. 1982).

4
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. 1990 (HB), 2007 WL 2244321, at *4 (S.D.N.Y. Aug.

6, 2007).

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), 2007 WL

4320757, at *2 (S.D.N.Y. Dec. 11, 2007). Giovanniello timely appealed to this court on

December 19, 2007. A month later, on January 15, 2008, he stipulated to withdrawal of the

appeal without prejudice to reinstatement pending resolution of two other appeals

challenging the application of N.Y. C.P.L.R. § 901(b) to TCPA class-action suits brought in

New York. See Stipulation, Giovanniello v. ALM Media, Inc., No. 07-5371-cv (2d Cir. Jan.

15, 2008). After resolution of those appeals, Giovanniello failed to respond to an order to

5
show cause relating to the status of his appeal. Accordingly, this court ordered the appeal

dismissed pursuant to the earlier stipulation. See Order, Giovanniello v. ALM Media, Inc.,

No. 07-5371-cv (2d Cir. Feb. 9, 2009). The mandate subsequently issued on March 13,

2009.

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, 2010 WL 3528649. The court observed that

Giovanniello had conceded that, even under the more generous federal statute of limitations,

his complaint was time-barred unless American Pipe & Construction Co. v. Utah, 414 U.S.

538, was construed to support tolling of the statute of limitations through his motion for

reconsideration or appeal of the judgment of dismissal entered in the Southern District action.

6
See Giovanniello v. ALM Media, LLC, 2010 WL 3528649, at *2 & n.3.2 Noting the lack

of any support for Giovanniello’s urged construction of American Pipe in our circuit

precedent, see id. at *4, and the unanimous contrary authority from our sister circuits, see id.

at *5-6, the district court dismissed Giovaniello’s claim as time-barred without conclusively

deciding whether the state or federal statute of limitations applied. See id. at *6.

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., 637 F.3d 169, 173 (2d Cir. 2011). We may affirm on any ground

supported in the record, even if it is not one on which the district court relied. See 10 Ellicott

Square Court Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir. 2011).

2
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.

7
 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,

650 F.3d 189, 2011 WL 1565847, at *5 (2d Cir. 2011) (“Statutory analysis necessarily begins

with the plain meaning of a law’s text and, absent ambiguity, will generally end there.”

(internal quotation marks omitted)). Title 28 U.S.C. § 1658(a) states that “[e]xcept as

otherwise provided by law, a civil action arising under an Act of Congress enacted after

[December 1, 1990] may not be commenced later than 4 years after the cause of action

accrues.” (emphasis added). As the highlighted language indicates, the statute expresses a

default position: a four-year statute of limitations applies only if Congress has not indicated

that some other time period controls.

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 that

the language is “unambiguous” in placing “an express limitation on the TCPA which federal

8
courts are required to respect”: a TCPA claim “cannot be brought if not permitted by state

law.” Bonime v. Avaya, Inc., 547 F.3d 497, 502 (2d Cir. 2008), abrogated on other grounds

by Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010).

Indeed, as we recently stated, the “otherwise permitted” provision is “a delegation by

Congress to the states of considerable power to determine which causes of action lie under

the TCPA.” Holster v. Gatco, Inc., 618 F.3d 214, 217-18 (2d Cir. 2010), cert. denied, 131

S. Ct. 2151 (2011).3 Although it may seem “unusual,” Bonime v. Avaya, Inc., 547 F.3d at

499, for Congress to have created a federal cause of action that may be “define[d] by state

law,” Holster v. Gatco, Inc., 618 F.3d at 216, that intent is confirmed and explained in

legislative history.

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

3
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, 304 U.S. 64 (1938), to hold that, in a federal diversity action, N.Y. C.P.L.R.
§ 901(b) required the dismissal of a putative class action under the TCPA. See Holster v.
Gatco, Inc., 618 F.3d at 216-17. Nothing in Shady Grove disturbed Bonime’s alternative
ground for decision, which construed the plain language of the TCPA’s “otherwise
permitted” provision to require federal courts to respect the prohibition of § 901(b). This
distinction was drawn by Judge Calabresi in his concurring opinion in Bonime, which did
not join the majority in relying on Erie because a TCPA action is created by federal, not state,
law, but which nevertheless supported dismissal based on a construction of the limitation
Congress placed on TCPA actions through the plain language of the “otherwise permitted”
provision. See Bonime v. Avaya, 547 F.3d at 503 (Calabresi, J., concurring) (observing that
“state law that bars suit in state court, like [N.Y.] C.P.L.R. [§] 901(b), thus effectively
eliminates the cause of action created under the TCPA”). Indeed, Judge Calabresi clarified
the continued vitality of this ground for the Bonime decision in writing for the court in
Holster. See Holster v. Gatco, Inc., 618 F.3d at 217-18.

9
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 3 (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., 156 F.3d 432, 437 (2d

Cir. 1998) (discussing TCPA legislative history). In providing the “interstitial law”

necessary to “prevent[] evasion of state law by calling across state lines,” Congress chose to

make a TCPA action the “functional equivalent of a state law,” applicable only as otherwise

permitted by state law and court rules. Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (2d Cir.

2006) (Sotomayor, J.); see also Bonime v. Avaya, Inc., 547 F.3d at 503 (Calabresi, J.,

concurring) (discussing application of canon of construction pertaining to limiting clauses

to TCPA’s “otherwise permitted” provision). In thus delimiting TCPA actions, Congress

placed no restrictions on the state laws or court rules that must be satisfied. Rather, the “as

permitted” requirement is unqualified.

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

10
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 [11]. 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., 618 F.3d at 216 (emphasis added); see also id. at 217

(interpreting “otherwise permitted” provision “as a delegation by Congress to the states of

considerable power to determine which causes of action lie under the TCPA”); Bonime v.

Avaya, 547 F.3d at 504 (Calabresi, J., concurring) (observing that the Second Circuit has

interpreted the TCPA’s “state-centered language as having substantive content”). As in

Holster, we need not here consider the possibility of a state rule so trivial that it would be

absurd to allow non-compliance to deny a litigant his putative federal right to recover under

the TCPA. See Holster v. Gatco, Inc., 618 F.3d at 217 (observing that state law prohibiting

class action suits for statutory damages did not present concerns raised by “rules about ‘the

color and size of the paper’ used for the complaint” hypothesized by Justice Scalia’s

concurrence in Holster remand order (quoting Holster v. Gatco, Inc., 130 S. Ct. 1575, 1576

(2010) (Scalia, J., concurring))). Statutes of limitations do not fit into such a category. This

is apparent from the fact that federal courts adjudicating state causes of action pursuant to

diversity jurisdiction must apply outcome-determinative state statutes of limitations. See

generally Guaranty Trust Co. v. York, 326 U.S. 99, 100 (1945); accord Diffley v.

11
Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990) (“In diversity cases, state statutes of

limitations govern the timeliness of state law claims, and state law determines the related

questions of what events serve to commence an action and to toll the statute of limitations.”

(internal quotation marks omitted)).

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., 618 F.3d at 218. Such control encompasses not only the general authority to

recognize particular causes of action, but also the specific authority to determine the time

period within which such actions will be recognized. Accordingly, we construe the

“otherwise permitted” provision of 47 U.S.C. § 227(b)(3) to signal Congress’s intent to allow

state statutes of limitations to control a TCPA filing. If a claim for the transmission of an

unsolicited commercial fax is no longer “permitted” by a state statute of limitations, it cannot

be maintained under the TCPA, notwithstanding the federal catch-all statute of limitations

provided in 28 U.S.C. § 1658(a).4

4
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 [17, 19]. 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

12
 B. Giovanniello’s TCPA Claim Is Not Permitted by Conn. Gen. Stat. § 52-
570c(d)

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., 282 Conn. 722, 737, 924 A.2d 816, 827 (2007) (holding TCPA

claim governed by law of state where injury occurred, i.e., where fax was received).

Connecticut law recognizes a cause of action for the unlawful “use [of] a machine that

electronically transmits facsimiles . . . to transmit unsolicited advertising material . . . which

offers to sell goods or services.” Conn. Gen. Stat. § 52-570c(a). The parties appear to agree

that this is sufficient to demonstrate that a parallel federal action under the TCPA is

“otherwise permitted” under Connecticut law. We do not need to decide that question

because Giovanniello’s claim is, in any event, not permitted under the Connecticut statute

of limitations applicable to unsolicited commercial fax claims.5 Actions for injunctive relief

or statutory damages arising from a violation of § 52-570c(a) must be filed “within two years

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 [17-18]. 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.
5
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.

13
from the date of the act complained of.” Id. § 52-570c(d). In short, Connecticut law does

not “otherwise permit[]” an action for unsolicited commercial faxes filed more than two

years after transmission.

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

Giovaniello’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).6

Giovanniello does not contend that Connecticut law provides otherwise. Instead, he

persists in arguing against the application of Conn. Gen. Stat. § 52-570c(d) to his TCPA

6
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, 446 U.S. 478, 485-86 (1980) (restating “general
principle” that borrowing of state statute of limitations “logically include[s] rules of tolling”);
accord Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002); cf. Casey v. Merck &
Co., --- F.3d. ----, 2011 WL 3375104, at *5 (2d Cir. Aug. 5, 2011) (holding that federal court
evaluating timeliness of state law claims must look to relevant state law to determine
whether, and to what extent, statute of limitations is tolled by filing of putative class action
in another jurisdiction). While Connecticut has adopted American Pipe’s class action tolling
doctrine, see Grimes v. Hous. Auth., 242 Conn. 236, 244, 698 A.2d 302, 307 (1997), the
Connecticut Supreme Court has not addressed whether such tolling extends through the
pendency of an appeal of the denial of class certification. Because Giovanniello’s claim
would be time-barred under Connecticut law even if Connecticut were to extend class action
tolling as far as he urges, however, we need not explore the contours of American Pipe
tolling as adopted under Connecticut law.

14
claim. He submits that such an application is contrary to Jones v. R.R. Donnelly & Sons Co.,

541 U.S. 369 (2004), which endorsed a broad application of the federal catch-all statute of

limitations. In doing so, the Supreme Court identified concerns with the federal courts’

practice of “limitation borrowing” that led to enactment of 28 U.S.C. § 1658, notably (1) the

difficulty in determining which of a state’s statutes of limitations was best applied to a

particular federal claim, and (2) inconsistencies among states’ statutes of limitations for the

same federal claim. See id. at 378-79. These concerns are not present here.

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., 618 F.3d at 216 (recognizing “unique

nature” of federal action created by TCPA, which uses “state law to define the federal cause

of action” (citing Bonime v. Avaya, Inc., 547 F.3d at 503 (Calabresi, J., concurring))). For

the reasons stated in the previous section, we answer this statutory construction question by

construing § 227(b)(3) to encompass applicable state statutes of limitations.

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

15
Civ. 1390, 2007 WL 2903175, at *2 (N.D. Ill. Sept. 26, 2007);7 Stern v. Bluestone, 47

A.D.3d 576, 582, 850 N.Y.S.2d 90, 96 (1st Dep’t 2008), rev’d on other grounds, 12 N.Y.3d

873, 883 N.Y.S.2d 782 (2009); Zelma v. Konikow, 379 N.J. Super. 480, 487-88, 879 A.2d

1185, 1189-90 (N.J. Super. Ct. App. Div. 2005), are thus inapposite, and we have no reason

to consider further their treatment of TCPA claims.8

7
In Benedia, the district court concluded that “[a]bsent an express statute of
limitations, or a clear direction to consult state law, § 1658 controls.” 2007 WL 2903175,
at *2. The court did not construe the TCPA’s “otherwise permitted” provision to be a
“direction to consult state law” because the Seventh Circuit, unlike this court, recognizes
federal question jurisdiction for TCPA actions and does not look to state law to determine
which causes of action lie under that statute. See id. (citing Brill v. Countrywide Home
Loans, Inc., 427 F.3d 446, 451 (7th Cir. 2005)); see generally Bonime v. Avaya, Inc., 547
F.3d at 503-04 (Calabresi, J., concurring) (discussing differences between Second and
Seventh Circuits’ interpretation of 47 U.S.C. § 227(b)(3)). To the extent the Seventh
Circuit’s different interpretations of § 227(b)(3) may be presumed to have informed its terse
conclusion in Sawyer v. Atlas Heating & Sheet Metal Works, Inc., 642 F.3d 560 (7th Cir.
2011), that § 1658(a) supplies the statute of limitations for all TCPA claims, see id. at 561,
we cannot depart from our own contrary circuit precedent.
8
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 [14]. Not so. In Zelma v. Konikow, 379 N.J. Super. 480, 879 A.2d 1185, a New
Jersey court held only that “absent adoption of a specific, shorter period of limitations
expressly applicable to TCPA claims, the four-year limitation period provided in [§ 1658(a)]
applies to a TCPA action in the courts of this State.” Id. at 488, 879 A.2d at 1190 (emphasis
added). New Jersey, unlike Connecticut, had not adopted a specific shorter statute of
limitations for unsolicited commercial fax claims. See id. at 487 & n.4, 879 A.2d at 1189 &
n.4. As for Worsham v. Fairfield Resorts, Inc., 188 Md. App. 42, 981 A.2d 24 (Md. Ct.
Spec. App. 2009), Maryland’s intermediate appellate court concluded that § 1658(a) applied
to TCPA claims based on the Maryland Court of Appeal’s binding interpretation of the
TCPA’s “otherwise permitted” provision as (1) pertaining exclusively to a state’s choice of
venue for TCPA actions, and (2) not permitting individual states to decide whether to allow
TCPA actions in their courts. See id. at 50, 981 A.2d at 29 (citing R.A. Ponte Architects,
Ltd. v. Investors’ Alert, 382 Md. 689, 711-12, 857 A.2d 1 (2004)). Thus, to the extent

16
 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., 156 F.3d at 438 (recognizing that “existence of a private

right of action under the TCPA could vary from state to state”). Indeed, because Congress

enacted the TCPA primarily to fill a perceived jurisdictional gap for states that choose to

recognize a cause of action for unsolicited commercial faxes, it would be curious to assume

that Congress intended for state courts (or federal courts exercising diversity jurisdiction) to

apply a different limitations period to TCPA claims than they apply to parallel state claims.9

Worsham relied on a narrower interpretation of the TCPA’s “otherwise permitted” language,
its reasoning is unpersuasive and, in any event, contrary to our own binding circuit precedent.
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., 122 Nev. 317, 327-28, 130 P.3d 1280, 1286-87 (2006) (applying
Nevada’s two-year statute of limitations for actions based on “a statute for a penalty or
forfeiture” to TCPA action (internal quotation marks omitted)); Weitzner v. Vaccess Am.
Inc., 5 Pa. D. & C. 5th 95, 123-27 (Pa. Ct. Com. Pl. 2008) (applying Pennsylvania’s two-year
statute of limitations for invasion of privacy to TCPA action); David L. Smith & Assocs.,
LLP v. Advanced Placement Team, Inc., 169 S.W.3d 816, 822-23 (Tex. Ct. App. 2005)
(applying Texas’s two-year statute of limitations for trespass to TCPA action).
9
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., 981 A.2d 24, 30, 188 Md. App. 42, 51 (Md. Ct. Spec.
App. 2009), while claims brought under the MTCPA are subject to Maryland’s default three-
year statute of limitations provided by Md. Code, Cts. & Jud. Proc. § 5-101, see AGV Sports
Grp., Inc. v. Protus IP Solutions, Inc., 10 A.3d 745, 752-53, 417 Md. 386, 399 (2010)
(holding that MTCPA does not fall within exception to default statute of limitations for

17
 Finally, Giovanniello’s argument that Connecticut’s statute of limitations cannot apply

to TCPA claims because that state law was enacted in 1989, whereas the TCPA was enacted

in 1991, merits little discussion. The TCPA’s “otherwise permitted” language is not

restricted to state-imposed limitations enacted after the TCPA. Cf. Holster v. Gatco, Inc.,

618 F.3d at 218 (applying New York’s pre-existing statutory prohibition on class-action suits

seeking statutory damages to bar TCPA class claims brought in that state). In any event,

Connecticut amended § 52-570c in 2003, inter alia, to increase statutory damages from two

hundred to five hundred dollars, thereby aligning Connecticut law with the TCPA in that

regard. See 2003 Conn. Legis. Serv. P.A. 03-128 (S.S.B. 332) (West).

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.

statutory specialties). We need not consider whether particular features of Maryland state
law support the application of distinct statutes of limitations for the same alleged TCPA
violation depending on whether the claim is pleaded under federal or state law. Our task is
to construe federal law and, for the reasons stated, we read the “otherwise permitted”
provision of 47 U.S.C. § 227(b)(3) to include Conn. Gen. Stat. § 52-570c(d), which
specifically does not permit actions based on unauthorized commercial faxes filed more than
two years after transmission.

18
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. Gen. Stat. § 52-570c(d) expressly permits actions for unsolicited

commercial faxes to be maintained only if filed within two years of transmission, plaintiff’s

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, plaintiff’s TCPA claim is not “otherwise permitted” by Connecticut state law and

must be dismissed.

Accordingly, the judgment of the district court is AFFIRMED.

19
No. 10-3854-cv

Giovanniello v. ALM Media, LLC

WALLACE, Senior Circuit Judge, 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 rights on the same subject

matter. As a federal-created claim arising under a post-1990 Act of Congress, a

TCPA claim is governed by 28 U.S.C. § 1658, which establishes a four-year statute

of limitations “except as otherwise provided by law.” I disagree with the majority

that Congress’s authorization of the states to decide whether to permit private

TCPA actions in their courts also incorporates state statutes of limitations into
those causes of action. Even if it did, the Connecticut statute upon which the

majority relies does not purport to govern TCPA claims. I, therefore, concur only

in the judgment.

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, 414 U.S.

538 (1974) ceases once the district court strips the action of its class action

character. I would affirm on this basis and, as the district court did, avoid making

any ruling as to whether federal or state statutes of limitations govern TCPA causes

of action in states that permit them.

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 [4] 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

2
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., 156 F.3d 432, 436 (2d Cir.

1998). Indeed, single-plaintiff TCPA actions based on diversity will almost never

meet the amount in controversy for jurisdiction under 28 U.S.C. § 1332(a). See

Holster v. Gatco, Inc., 485 F. Supp. 2d 179, 182 (E.D.N.Y. 2007). Thus, as a

practical matter, district courts in the Second Circuit will likely only be presented

with TCPA claims when jurisdiction exists under the Class Action Fairness Act, 28

U.S.C. § 1332(d). Id. This court has held that representative TCPA actions are not

permitted by New York law. Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir. 2010),

cert. denied, 131 S.Ct. 2151 (Apr. 25, 2011). That leaves the districts of

Connecticut and Vermont to wrestle with class-TCPA claims with an amount in

controversy over $5,000,000. See 28 U.S.C. § 1332(d)(2).

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.

3
Super Fair Cellular, Inc., No. 07 Civ. 1390, 2007 WL 2903175, at *2 (N.D. Ill.,

Sept. 26) (“[E]ven if we decided that Illinois law controls, an Illinois court would

be free to select a different statute of limitations and litigants would face the same

uncertainty that Super Fair claims its interpretation would avoid”). Indeed, the

majority’s decision is in direct conflict with the courts of New York, which apply

the federal statute of limitations. Stern v. Bluestone, 850 N.Y.S.2d 90, 96 (N.Y.

App. Div. 2008), rev’d on other grounds, 12 N.Y.3d 873 (N.Y. 2009). Whatever

guidance the majority’s decision provides to litigants and trial courts is largely

illusory.

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

4
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, 2011 WL

2163718, at *4-*6 (Ill. June 3) (discussing and adopting the “‘Acknowledgment’

Approach”). Under this theory, the “if otherwise permitted” language in section

227(b)(3) merely acknowledges that states are free to adopt their own procedures

5
for TCPA actions. Id. Other courts have held that TCPA creates a right of action

that is automatically enforceable in state court, but that states may “opt out” by

withdrawing the jurisdiction of their courts. See, e.g., Edwards v. Direct Access,

LLC, 124 P.3d 1158, 1160 (Nev. 2005), abrogated on other grounds by Buzz Stew,

LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008). Finally, one state

court has held that TCPA provides a private remedy only if the states “opt in” by

adopting laws or court rules that affirmatively authorize private TCPA actions.

Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707, 716 (Tex.

2006).

The Second Circuit has not addressed this precise question. However, its

decision in Foxhall supports either the “opt out” or the “opt in” theory. 156 F.3d at

438 (“[T]he clause [‘if otherwise permitted by the laws or rules of court of a State’]

recognizes that states may refuse to exercise the jurisdiction authorized by the

statute. To the extent that a state decides to prevent its courts from hearing private

actions to enforce TCPA’s substantive rights, the existence of a private right of

action under the TCPA could vary from state to state”). Since the question was not

raised or briefed before us, I do not venture an opinion as to which theory is

correct. I point out, however, that plausible arguments could be made under both

the “opt out” and “opt in” approaches that Connecticut does not permit a private

6
TCPA action. If Connecticut law does not permit private actions under section

227(b)(3), then the district court would have had no subject matter jurisdiction to

hear Giovanniello’s claims in the first place. See Holster, 618 F.3d at 217-18

(affirming dismissal for lack of jurisdiction where TCPA class action would not be

permitted by the laws or rules of court of New York).

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

7
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

8
the same type of conduct. While this reasoning has some intuitive appeal, it is not

supported by principles of statutory construction.

Section 52-570c creates a state cause of action. To the extent Connecticut

law permits the courts of Connecticut to hear a cause of action arising under 47

U.S.C. § 227(b), such a cause of action is parallel to, but distinct from, actions

arising under section 52-570c. The Connecticut statute creates private civil

remedies for violations “of the provisions of this section.” Conn. Gen. Stat. § 52-

570c(d) (emphasis added). It says nothing about a remedy for violations of 47

U.S.C. § 227(b)(3). Furthermore it provides that “such action” must be brought

within two years. Id. (emphasis added). “Such action” refers to an action for

violation of section 52-570c. It does not include an action for violation of TCPA.

This is so even though the same act would constitute a violation of both statutes.

Thus, according to the statute’s terms, the two-year limitations period applies only

to causes of action for violation of that section.

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 [14]. 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.

9
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 [9]. 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.

10
 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 plaintiff’s

claim against the defendant was made possible by a post-1990 enactment.” 541

U.S. 369, 382 (2004). Congress did not adopt any specific limitations period for

TCPA claims. Therefore, the most straightforward interpretation of the statutes is

that section 1658 should apply.

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 merely to fill a “perceived

jurisdictional gap for interstate communications that states might not otherwise be

able to reach.” Op. at [10-11]. Thus, the most natural reading of the clause is that,

upon filling the jurisdictional gap, Congress allowed the states to decide either to

permit private TCPA actions in their courts or to not permit them. Legislative

history may also support a conclusion that the clause merely leaves states free to

determine the venue and procedures for TCPA actions. See, e.g., R.A. Ponte

11
Architects, Ltd. v. Investors’ Alert, Inc., 857 A.2d 1, 13-14 (Md. 2004) (discussing

statements by bill’s sponsor, Senator Hollings).

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., 981 A.2d 24, 33 (Md. Ct. Spec. App. 2009). Under Jones, we should

interpret section 1658 to fill “more rather than less of the void” caused by

borrowing state statutes of limitations for federal causes of action. 541 U.S. at 380.

This principle that section 1658 should be read to apply broadly the four-year

limitations period to federal causes of action suggests the corollary principle that

potential exceptions to the four-year period should be read narrowly. See Zelma v.

Konikow, 879 A.2d 1185, 1187-88 (N.J. Super. Ct. App. Div. 2005). Nevertheless,

the majority chooses the broadest possible reading of TCPA’s “if otherwise

permitted” clause.

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 [15-16]. I doubt that the concerns the Supreme Court identified in

12
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 [16], 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 “analagous state statute of limitations was

13
uncertain.” Op. at [16-17]. 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 for TCPA actions rather than New

Jersey’s two-year limitations period. 879 A.2d at 1185-86. It concluded that

“Jones requires a narrow reading of the phrase ‘[e]xcept as otherwise provided by

law’ included in § 1658 and a similarly narrow reading of language of ‘exception’

included in statutes like the TCPA that were enacted after § 1658.” Id. at 1188.

The court “hesitate[d] to read general language of exception to infer that Congress

intended to create new ‘voids’ in federal law governing limitation periods and

reintroduce the difficulties and confusion that § 1658 was designed to eliminate.

Absent a clear indication of an alternate limitation period, language of exception in

post-1990 federal enactments should not be read as intended to override the

limitation period provided in § 1658.” Id.

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

14
for a person to violate the federal TCPA.” 981 A.2d 30-34. There, the court

reasoned that the cause of action created by TCPA clearly falls within the scope of

section 1658, and that Congress did not clearly indicate that a different statute of

limitations should apply. Id. at 32-33. “[I]f Congress, in fact, had intended to

exempt actions under the TCPA from the uniform federal statute of limitations,

Congress could have chosen language that made such an intent more evident, or

better yet, explicit.” Id. at 33.

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.,

547 F.3d 497 (2d Cir. 2008), and Holster v. Gatco, Inc., 618 F.3d 214 (2d Cir.

15
2010), for the proposition that Congress left the states to adopt their own

limitations period for TCPA claims. Bonime held that a New York law barring

TCPA class actions in state court also prohibited TCPA class actions in federal

court. 547 F.3d at 501-02. The court reasoned that the Erie doctrine required it to

apply New York’s law because “TCPA functionally operates as state law.” Id. at

501. As a second, independent ground for the decision, the court held that the “if

otherwise permitted” clause of section 227(b)(3) unambiguously mandated that “a

claim under the TCPA cannot be brought if not permitted by state law.” Id. at 502.

Because New York law did not permit TCPA claims to be brought as class actions

in state court, so too they could not be permitted in the district court. The Supreme

Court’s decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance

Co., 130 S.Ct. 1431 (2010), abrogated Bonime’s first rationale. Holster, 618 F.3d

at 216-17. However, the Second Circuit reaffirmed the second rationale, reasoning

that the legislative history and Congress’s decision not to preempt more restrictive

state regulations “say to us that Congress intended to give states a fair measure of

control over solving the problems that the TCPA addresses.” Id. at 218.

According to Holster, “[t]he ability to define when a class cause of action lies and

when it does not is part of that control.” Id.

16
 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 [11]. 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

17
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.1

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., 106 F.3d 1146, 1156 (4th Cir. 1997) (“[T]he clause recognizes

that states may refuse to exercise the jurisdiction authorized by the statute. Thus, a

state could decide to prevent its courts from hearing private actions to enforce the

TCPA’s substantive rights. To that extent, the existence of a private right of action

under the TCPA could vary from state to state”); accord Foxhall, 156 F.3d at 438.

1
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.

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For its part, Congress chose to limit the use of federal judicial resources for TCPA

enforcement by denying private claimants a federal forum except in cases where

diversity jurisdiction exists. See Foxhall, 156 F.3d at 437-38; Gottlieb v. Carnival

Corp., 436 F.3d 335, 340-41 (2d Cir. 2006). Congress’s decision to authorize

private actions “while mindful of not overburdening state and federal courts and

respecting states’ judgments about when their courts are overburdened,” Foxhall,

156 F.3d at 438, does not imply that Congress granted the states power to alter the

scope of the cause of action it created.

I also disagree with the majority’s contention that Congress “disclaimed any

interest in uniform treatment of TCPA claims among the states.” Op. at [18]. In

Foxhall, this court recognized that the “existence of a private right of action under

the TCPA could vary from state to state,” 156 F.3d at 438 (emphasis added), and

Holster confirmed that states may adopt their own methods for processing claims,

618 F.3d 214, but that does not mean that Congress intended the scope of a private

right of action to vary among those states where the cause of action exists. Indeed,

to so hold is in direct tension with the Supremacy Clause. Whether or not it is

“curious to assume that Congress intended for . . . courts . . . to apply a different

limitations period to TCPA claims than they apply to parallel state claims,” Op.

at [18], the fact remains that federal claims created after 1990 are governed by

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section 1658 unless Congress clearly provides otherwise. Congress’s decision that

private actions under TCPA are authorized in state courts if permitted by state law

does not clearly provide for a different statute of limitations.

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.

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