Antitrust Law Daily Wrap Up, PRIVACY—W.D. Wash.: TCPA did not preempt Washington state Do Not Call claims, (Nov 18, 2013)

By Jody Coultas, J.D.

Washington State’s Do Not Call provision was not preempted by the federal Telephone Consumer Protection Act (TCPA), the federal district court in Seattle has held (Southwell v. Mortgage Investors Corp. of Ohio, Inc., November 14, 2013, Pechman, M).

Class representatives alleged that they received repeated calls to their cellular phones encouraging them to refinance their home loans from Mortgage Investors Corporation of Ohio, Inc. (MICO), even after they stated that they no longer wished to receive the calls. MICO argued that the Washington Do Not Call claims were preempted by the TCPA and federal Do Not Call regulations and moved to dismiss the state law claims.

The claims were not expressly preempted, according to the court. Although the TCPA expressly permits certain types of state laws, it does not specify which state laws are preempted. MICO argued that other state laws not covered in the savings clause are expressly preempted. However, MICO could not point to any language subjecting state laws omitted from the savings clause to preemptive effect. MICO’s argument also contradicts the presumption against preemption.

MICO was also unable to show that the claims were impliedly preempted, according to the court. The implied preemption argument was based on conflict preemption, which occurs when compliance with both federal and state regulations is a physical impossibility or when the challenged state law stands as an obstacle to the accomplishment of the objectives of Congress. Complying with federal law and Washington’s Do Not Call provision was not impossible and did not contravene the intent of Congress. Congress’s intent in enacting the TCPA was to promote a uniform regulatory scheme under which telemarketers would not be subject to multiple, conflicting regulations. The Do Not Call provision differed from the federal regulations and could produce different effects. However, the differences were not so substantial as to produce widely divergent results and did not pose an obstacle to the intent of Congress, the court concluded.

The case is No. C13-1289 MJP.

Attorneys: Beth E. Terrell (Terrell Marshall Daudt & Willie PLLC) for Joseph Southwell. John Huh (DLA Piper US LLP) for Mortgage Investors Corp. of Ohio, Inc.

Companies: Mortgage Investors Corp. of Ohio, Inc.

Cases: Privacy WashingtonNews