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Click here for the full text of this decision FACTS:Beginning in 1992, The Chair King Inc., and others (collectively plaintiffs or recipients) complain that they began to receive illegal faxes from various companies advertising their products. They originally filed suit in federal court, but the court dismissed the case for lack of subject-matter jurisdiction. The plaintiffs then filed this suit in state court against a number of defendants alleging a private damage claim under the federal Telephone Consumer Protection Act, negligence, negligence per se, invasion of privacy, trespass to chattels, gross negligence, and conspiracy among the senders. The trial court granted the defendants’ joint and individual summary-judgment motions and denied the plaintiffs’ motion for partial summary judgment. The plaintiffs settled with various defendants during the course of the proceedings, leaving only GTE Mobilnet of Houston Inc. and Chick-Fil-A Inc. as defendants before the court of appeals. The court of appeals affirmed the trial court’s judgment in part, and reversed and remanded in part. Specifically, the court affirmed the trial court’s summary judgment on all of the common-law claims, on all claims against Chick-Fil-A after applying Texas’ two-year statute of limitations, and on certain plaintiffs’ TCPA claims against GTE Mobilnet that the court considered barred by limitations. The court reversed the trial court’s judgment as to the remaining plaintiffs’ TCPA claims against GTE Mobilnet, which were remanded for further proceedings. Both sides petitioned this court for review. HOLDING:Reversed and rendered. The court finds no clear indication in either the statutory language or the legislative history that would indicate Congress intended to unconditionally mandate a private TCPA damage claim in state court that the states could not choose to decline. The court rejects the acknowledgment interpretation of the TCPA that some courts have followed. The opt-out interpretation reads the TCPA to immediately authorize private rights of action in state court without the necessity of affirmative state action, but allows states legislatively to decline to entertain them. Though the court does not believe the Supremacy Clause concerns and purported inefficiencies that some courts have perceived in adopting an opt-out approach are valid in light of the explicit statutory proviso and the TCPA’s purpose to supplement state efforts to regulate unsolicited faxes, the court considers the congressional intent underlying the TCPA to favor the opt-in interpretation. Because Texas did not otherwise permit a cause of action for the receipt of unsolicited fax advertisements until Sept. 1, 1999, and the faxes at issue in this case were sent before that date, plaintiffs have no actionable claim. OPINION:O’Neill, J., delivered the court’s opinion.

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