[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 22, 2002
_______________
THOMAS K. KAHN
CLERK
No. 01-13725
_______________
D. C. Docket No. 97-01492-CV-DLG
COMMODITY FUTURES TRADING COMMISSION,
Plaintiff-Appellant,
versus
MASS MEDIA MARKETING, INC.,
a Florida Corporation,
COMMODITY REFERRAL SERVICE, INC.,
a.k.a. Commodities Referral Service, Inc., et al.,
Defendants-Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(July 22, 2002)
Before BIRCH and WILSON, Circuit Judges, and DOWD*, District Judge.
BIRCH, Circuit Judge:
This appeal arises from the district court’s grant of summary judgment to
Mass Media Marketing, Inc. (“Mass Media”), Commodity Referral Service, Inc.
(“CRS”), and Rolando Nanasca (hereinafter collectively known as “Advertisers”),
and the district court’s denial of a cross-motion for partial summary judgment by
Commodity Futures Trading Commission (“CFTC”). The district court held that
the Introducing Broker registration and record-keeping requirements of the
Commodity Exchange Act (“CEA”) did not apply to Advertisers. The court found
that, as advertisers, they were not engaged in soliciting or accepting orders for
options contracts. Therefore, Advertisers do not fall within the CEA’s definition
of an “Introducing Broker.” Further, the district court held that the CFTC may not
validly enforce its anti-fraud regulation against Advertisers because they did not
“offer to enter into, enter into or confirm the execution of any transaction involving
any commodity regulated by the Act” as required by the enabling statute of the
CEA. We AFFIRM.
*
Honorable David D. Dowd, Jr., U.S. District Judge for the Northern District of Ohio,
sitting by designation.
2
I. BACKGROUND
Mass Media and CRS are advertising, marketing, video production and
syndication companies. Both companies produce commercials designed to solicit
members of the general public to invest in commodity options. The broadcasts
instruct viewers to call an 800-number to obtain information about commodity
options. Viewers who respond to the advertisements reach an independent
answering service that collects the callers’ names, addresses, and telephone
numbers and then sell the information to a commodity broker, or Introducing
Broker1, as a list of “leads.”
Advertisers broadcast two types of commodity commercials: sponsored and
blind advertisements. Sponsored advertisements were produced at the request and
under the direction of a specific Introducing Broker, which stated the broker’s
name on the advertisement. Blind advertisements, on the other hand, were
1
Congress amended the CEA in 1982 to resolve the need to “guarantee accountability
and responsible conduct of such persons” who “deal with commodity customers and, thus have
the opportunity to engage in abusive sales practices.” R4-133-10. All persons who solicit or
accept customer orders for Futures Commission Merchants (“FCM”) are required to register as
either “associated persons” of the FCMs, or as Introducing Brokers. Introducing Brokers, unlike
associated persons of a FCM, are independent entities that solicit and accept customer orders, but
use the services of FCMs for clearing, record keeping and retaining customer funds.
3
produced without reference to a specific Introducing Broker.2 The leads generated
by these advertisements were sold to any interested Introducing Broker.
Nanasca, the president of Mass Media and CRS, was involved in writing the
scripts, determining the visual text, negotiating the advertised rates, and marketing
any leads generated by the advertisements. Nanasca ultimately approved blind
advertisements.
Advertisers also began a program called “evaluated plus leads” where they
would call back individuals who had once responded to an advertisement. If the
prospective customer stated that he or she had was interested in speaking to a
broker, Advertisers would sell the lead to any interested Introducing Broker.
The Introducing Broker paid Advertisers based on the number of names, or
leads, generated by the Introducing Broker’s commercial. Advertisers were not
paid on the number of callers who subsequently opened accounts through the
Introducing Broker or on the number of trades placed by the callers who became
customers. Advertisers never collected any money from callers, nor did they
discuss commodity investments with these callers. These discussions took place
2
Advertisers voluntarily stopped broadcasting blind advertisements in early 1997, after
the National Futures Association (“NFA”), an industry self-regulatory organization, issued
notice that it disapproved of non-sponsored material in May of 1996. In response, Nanasca
formed CRS to produce commodities advertising and attempted to register with the NFA as an
Introducing Broker.
4
once an Introducing Broker purchased the leads from Advertisers, and then
contacted the caller itself.
The CFTC filed a complaint against Advertisers alleging that they used
fraudulent advertisements and infomercials to solicit potential customers to invest
in commodity options, which violated certain registration and record-retention
regulations issued by the CFTC, 17 C.F.R. § 33.10. Advertisers challenged the
CFTC’s jurisdiction to apply this rule because they were involved in soliciting
potential customers for options trading through brokers and not involved in the
actual trades. The district court found that Advertisers do not fall within the
CEA’s definition of an Introducing Broker, and therefore, are not required to
register. Further, the district court held that the CFTC may not validly enforce its
anti-fraud regulation against Advertisers because they did not “offer to enter into,
enter into or confirm the execution of any transaction involving any commodity
regulated by the Act” as required by the enabling statute. R4-133-25. The CFTC
appeals both issues.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo, apply the
same standard as the district court, and review “all facts and reasonable inferences
in the light most favorable to the nonmoving party.” Allison v. McGhan Med.
5
Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Summary judgment is proper when
"there is no genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
A. CEA’s Introducing Broker Registration Requirement
An Introducing Broker, as defined under the CEA, is:
any person (except an individual who elects to be and is
registered as an associated person of a futures
commission merchant) engaged in soliciting or in
accepting orders for the purchase or sale of any
commodity for future delivery on or subject to the rules
of any contract market who does not accept any money,
securities, or property (or extend credit in lieu thereof) to
margin, guarantee, or secure any trades or contracts that
result or may result therefrom.
7 U.S.C. § 1a(14) (emphasis added).
The CFTC claims that by soliciting and referring prospective investors to
Introducing Brokers, Advertisers acted as unregistered Introducing Brokers in
violation of the CEA. Advertisers, on the other hand, contend that the plain
language of the statute does not cover “general solicitation to the public through
television advertisements, which neither invite nor accept the placement of an
order.” R4-133-11.
We follow the two-step framework of Chevron, Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82 (1984), to
6
analyze an agency’s interpretation of a statute. The first step in the Chevron
analysis requires the court to inquire whether Congress has directly spoken to the
precise question at issue.
If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress
has not directly addressed the precise question at issue . .
. the question for the court is whether the agency’s
answer is based on a permissible construction of the
statute.”
Id. at 842-43, 104 S. Ct. at 2781-82.
The district court found the phrase “engaged in soliciting or in accepting
orders” to be ambiguous since the CEA does not define the term “soliciting” or
explain its application. Next, the district court looked to the CFTC’s interpretation
of the phrase to determine whether it was based on a permissible construction of
the CEA. The CFTC explains the phrase as “covering customer ‘solicitation[] for
compensated referral to other registrants so that a trading relationship can be
initiated and the customer’s orders executed.’” R4-133-13. The CFTC relied on
Wisconsin Dept. of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 112 S. Ct.
2447 (1992), where the Court discussed activities that constitute “solicitation of
7
orders.”3 Based on Wrigley, the district court found that “a key question in
determining whether an activity constitutes ‘solicitation of orders’ is whether the
only objective for conducting the activity is to facilitate requests for purchases. If
so, the activity is the solicitation of an order.” R4-133-14-15.
The district court determined that the CFTC’s interpretation of the phrase
“engaged in soliciting or in accepting orders” was not a permissible construction of
the CEA. It reasoned that Advertisers’ primary goal was to obtain leads for
Introducing Brokers, not orders for commodity futures. The court found that
Advertisers’ activities were better characterized as a “customer finder” rather than
an Introducing Broker. Moreover, the CFTC’s prior interpretation of the
Introducing Broker requirement, which “require[s] registration as Introducing
Brokers those persons who were formerly agents of FCMs or who performed the
types of activities traditionally engaged in by agents,” cannot be reconciled with
the CFTC’s current interpretation. Id. at 17 (quotations omitted). Based on the
CFTC’s prior interpretation of the Introducing Broker requirement, Advertisers
would not be required to register under the CEA. Furthermore, the district court
noted that the CEA’s legislative history does not reference advertisers or an intent
3
The district court noted that the facts of Wrigley are inapposite to the facts in this case,
nonetheless, the Court’s discussion of the activities that constitute “solicitation of orders” is
helpful to this analysis.
8
by Congress to regulate as Introducing Brokers persons who neither invite nor
accept the placement of an order.4
The district court was correct in concluding that the CFTC’s interpretation
was impermissible. Advertisers were never involved in the making of an offer to
enter into a commodity contract or assisting customers in carrying out such a
transaction. Customers were asked to call a toll free number after viewing a
commodities advertisement. An answering service operator would give the caller a
description of the product or service being offered, and then obtain the caller’s
name, address and telephone number. These leads were then sold to Introducing
Brokers. That Introducing Broker would then contact the prospective customer to
discuss investing or placing an order for commodities. As the district court notes,
the “simple act of referral does not directly jeopardize the interests of the investing
public.” Id. at 20 (citation omitted). Therefore, Advertisers “lack the means and
incentive to create a scenario for potential misconduct during the solicitation
process that triggered the Congressional enactment of the Introducing Broker
registration requirement in 1982.” Id. at 19-20.
4
The district court noted that Congress’ intent was aimed to “resolve[] any uncertainty as
to the status of agents of [FCM] and to regulate individuals in their activities of soliciting orders
for futures contracts.” R4-133-18.
9
B. CFTC’s Anti-Fraud Regulations
The CFTC argues that it may still enforce its anti-fraud regulations, 17
C.F.R. § 33.10,5 against Advertisers even if they did not meet the Introducing
Broker registration requirement. Based on the enabling statute of the CEA, the
district court held that the CFTC acted beyond its jurisdictional scope in extending
its anti-fraud rules to Advertisers who act “in connection with” commodity
options.
Section 4c(b), the enabling statute of the CEA, provides:
No person shall offer to enter into, enter into or confirm
the execution of, any transaction involving any
commodity regulated under this chapter which is of the
character of, or is commonly known to the trade as, an
“option” . . . contrary to any rule, regulation, or order of
the Commission prohibiting any such transaction or
allowing any such transaction under such terms and
conditions as the Commission shall prescribe.
5
17 C.F.R. § 33.10 states:
It shall be unlawful for any person directly or indirectly - -
(a) to cheat or defraud or attempt to cheat or defraud any
other person;
(b) to make or cause to be made to any other person any
false report or statement thereof or cause to be entered
for any person any false record thereof;
(c) to deceive or attempt to deceive any other person by any
means whatsoever
in or in connection with any offer to enter into, the entry
into, the confirmation of the execution of, or the
maintenance of, any commodity option transaction.
10
7 U.S.C. § 6c(b)
The district court employed the Chevron analysis, as set forth above, and
determined that Congress unambiguously expressed its intent in plain language of
the enabling statute of the CEA. The district court concluded that the statute
applies only to those who offer to enter into, enter into or confirm the execution of
any commodity transaction. There were no allegations that Advertisers engaged in
such activities, and therefore, the CFTC could not impose its anti-fraud regulation
on Advertisers.
The CFTC argues that the district court failed to consider the authority
granted to it by section 2(a)(1)(A)(i) of the CEA, 7 U.S.C. § 2(i), which provides,
in relevant part: “[t]he Commission shall have exclusive jurisdiction . . . with
respect to accounts, agreements (including any transaction which is of the character
of, or is commonly known to the trade as, an “option” . . .), and transactions
involving contracts of sale of a commodity for future delivery . . . .”6 The CFTC
argues that the broad delegation of exclusive and plenary jurisdiction in 7 U.S.C. §
2(i) is sufficient grounds to support 17 C.F.R. § 33.10.
6
Furthermore, the CFTC argues that its jurisdictional authority to promulgate 17 C.F.R. §
33.10 arises from section 8a(5), 7 U.S.C. § 12a, of the CEA, as well. This argument was raised
for the first time on appeal, and therefore, we will not consider it.
11
Nonetheless, the district court’s conclusion was not based on whether the
CFTC had the authority to promulgate 17 C.F.R. § 33.10. It found that the CFTC
could not impose its rules on entities that are clearly excluded by the CEA.
“[Advertisers’] general solicitation through their advertisements never involved the
making of an offer to enter into a commodity transaction or assisting customers in
carrying out such transactions.” R4-133-18. Thus, Advertisers’ activities do not
fall within the boundaries of the CEA or the jurisdiction of the CFTC.
AFFIRMED.
12