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No special state legislation is required for a consumer to bring a private action against a telemarketer under the federal Telephone Consumer Protection Act of 1991, a state appellate court has ruled. The ruling in Schulman v. Chase Manhattan Bank, 1999-03585, came in a case brought by a New York woman who claimed Chase Manhattan Bank bombarded her home with unsolicited automated telephone calls. Ruling from the New York Appellate Division, 2nd Department, affirmed Justice Aaron D. Bernstein’s denial of the bank’s motion to dismiss Melissa Schulman’s complaint under the 1991 telemarketing law enacted to restrict automated telephone calls that deliver prerecorded messages. Schulman sued in Kings County Supreme Court, claiming about 75 unsolicited calls over a five-month period in 1998 were made to her home on behalf of the bank despite her oral and then written request that the calls be stopped. She alleged that the calls violated the Telephone Consumer Protection Act (TCPA) in that they were unsolicited and they failed to identify the business or entity initiating the calls. The TCPA allows a person or entity to bring a private action in an “appropriate court” of a state, “if otherwise permitted by the laws or rules of [the] court of a state.” Damages may be awarded for actual monetary loss or $500 for each violation, whichever is greater. Courts have the right to treble the award where the violation was found to be willful or knowing. The bank argued that Schulman did not have a private right to sue under the statute because New York had not specifically promulgated regulations or enacted legislation permitting a private right of action for violations of the federal telemarketing law. But Justice Cornelius J. O’Brien, writing for the unanimous four-judge panel, rejected that interpretation of the TCPA as “inconsistent with established principles governing state court jurisdiction over claims based on federal laws.” He wrote that “… Congress has clearly expressed its intent that state courts have jurisdiction over private claims under the [TCPA].” APPROPRIATE COURT “In fact,” he continued “the TCPA is unusual in that it gives state courts exclusive jurisdiction over private rights of action and limits federal court jurisdiction to civil actions to enforce the TCPA brought by state attorneys general or the Federal Communications Commission.” “Although state courts share responsibility for enforcing federal law, and Congress clearly intended state courts to take responsibility for enforcing private rights under the TCPA, ‘[t]he requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the state create a court competent to hear the case in which the federal claim is presented,’” the judge wrote. “We therefore conclude that the [TCPA's] phrase ‘if otherwise permitted by the laws or rules of court of a State’ merely acknowledges the principle that states have the right to structure their own court systems and state courts are not obligated to change their procedural rules to accommodate TCPA claims,” Justice O’Brien added. Justices Daniel W. Joy, Anita R. Florio and Howard Miller concurred with Justice O’Brien’s opinion. William E. Fay and Laurel A. Wedinger of Barry, McTiernan & Moore handled the appeal for Chase Manhattan Bank. Scott Star of Brooklyn, N.Y., appeared for Schulman.

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