The Bank also argues that the $500.00 per fax statutory penalty is so radically disproportionate to the actual damage suffered by a recipient of an unsolicited telephone facsimile message that it violates the Due Process Clause of the Fifth Amendment to the United States Constitution.

Finally, Charter One posits that the TCPA=s total ban on commercial fax advertising discriminates against speech based on its content when a less restrictive approach would satisfy the governmental interest sought to be protected by the regulation.  Hence, the TCPA       violates the freedom of speech rights guaranteed by the First Amendment to the United States Constitution.

As to the remaining counts, the Bank contests the legal sufficiency of each claim.  735 ILCS 5/2-615.  The conversion claim must fail, it argues, because the Plaintiff does not assert that the mere fact of sending a telephone facsimile message is illegal.  Hence, the Plaintiff can claim no greater interest in the paper and toner consumed by the message than the sender.

Charter One posits that the ICFA claim must fail because it fails to enumerate a violation of the Illinois statute prohibiting commercial telephone facsimile messages^[1] as a per se ICFA violation.  In addition, the Defendant argues that the mere sending of a commercial telephone facsimile message does not rise to the level of an unfair or deceptive act as defined by Illinois law.

Finally, the Bank suggests that, because the paper and toner consumed by the message has no residual value, a claim for property damage will not lie.

1)         LEGAL STANDARD

A.        2-619 MOTION

Section 2-619 affords a means of obtaining a summary disposition of issues of law

or easily proven issues of fact.  Subsection (a)(9) permits dismissal where the claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating a claim.@

The phrase affirmative matter encompasses any defense other than a negation of the essential allegations of the plaintiff=s cause of action.  For that reason, it is recognized that a 2-619(a)(9) motion to dismiss admits the legal sufficiency of the plaintiff=s cause of action much in the same way that a 2-615 motion to dismiss admits a complaint=s well-pleaded facts.  Kedzie & 103^rd Currency Exchange v. Hodge, 156 Ill. 2d 112, 115 (1993).

In making that last statement, the Illinois Supreme Court cited with approval the discussion of this issue in Barber-Coleman v. A & K Midwest Insurance Co., 236 Ill. App. 3d 1065 (1993).  There, the court reasoned that affidavits in support of a 2-619 (a)(9) motion cannot be used to attack the factual sufficiency of a claim because the defendant admitted, for the purpose of the motion, those facts which are necessary to the plaintiff=s claim.

A 2-619(a)(9) motion contrasts with a summary judgment motion in that the latter allows the movant to contest by affidavit the truth of the allegations made.  In other words, by the use of affidavits the opposing party states that the material facts alleged in support of the claim or defense are not true.  To the contrary, a 2-619(a)(9) motion asserts there exists other affirmative matter avoiding the legal effect or defeating the claim.  Hence, a 2-619(a)(9) motion admits all well pled facts that are essential to the claim, but not any of the facts that may touch on the affirmative matters raised in the motion.

2)        2-615 MOTION

A section 2-615 motion attacks the legal sufficiency of the Plaintiff=s claim.  The

motion does not raise affirmative factual defenses, but rather alleges defects only on the face of the complaint.  The question presented by a section 2-615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted.  A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover.  Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997); Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996).

3)         DISCUSSION

The facts alleged in the Amended Complaint are rather straightforward and will

be discussed in the context of the analysis of the Defendant=s grounds for dismissal.

1)         COUNT I B TCPA   

1.   NECESSITY OF STATE ACTION

The initial argument raised by Charter One involves a discussion of the legislative intent expressed by the United States Congress in the language used in the TCPA as well as the intent of the legislators who debated or discussed the bill during the deliberative process leading to its passage.

The TCPA, in pertinent part, prohibits the transmission of an unsolicited advertisement to a telephone facsimile machine.^[2]  An unsolicited advertisement is defined in the statute as any material advertising the commercial availability or quality of any property, goods or services^[3]  The statute also states that any 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 an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater^[4]          It is the language, Aif otherwise permitted by the laws or rules of court of a State,@ that is the focus of the Bank=s first argument

This text, it suggests, requires an affirmative authorization by a state before such private litigation may be brought in state court.  No other conclusion, the Defendant asserts, can be culled from this language.  Hence, in the Bank=s view, a State must opt in before its courts may entertain a TCPA action.

This position is also buttressed, the Bank posits, by statements made by Senator Ernest Hollings, one of the TCPA=s sponsors.  On November 7, 1991, Senator Hollings discussion of the Bill=s creation of a private right of action is quoted in the Congressional Record.  After stating that the bill allows a private right of action in state courts, he  recognizes the federal principle of state sovereignty by recognizing that the Federal Government cannot, because of constitutional restraints, dictate to the States which court in each State shall be the proper venue for such an action. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims courts^[5]  The Senator then suggests these matters should not involve attorneys and the neutral fairness of the amount of damages allowed.  Finally, he stated: AI thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.@^[6]

Finally, Charter One points to the decision of the Court of Appeals in International Science & Technology Institute, Inc. v. Inacom Communications, Inc ., 106 F.3d 1146 (4 ^th Cir. 1997).  It argues that many courts have misinterpreted the Court=s reasoning.  The Bank suggests that the opening paragraph of the opinion states the true result of the ruling.  Judge Niemeyer, writing for the Court, stated A[Today this Court decides] that states have been given, subject to their consent, exclusive subject matter jurisdiction over private actions authorized by the [TCPA].@^[7]

In order to determine Congress= intent in any law or statute, Court=s must first analyze the text of the Act.  New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645, 656 (1995). Only if the intent cannot be determined by the language of the Act should a court move on to analyze the structure and purpose of the Act in which it occurs. Id.

The language of the TCPA statute Aif otherwise permitted@ seemingly supports Charter One=s argument that Congress envisioned a series of positive actions by state governments incorporating this new regulatory remedy into state law.  However, such a  reading ignores the context of the federal/state relationship created by the United States Constitution as well as the essential distinction between federal and state courts.  When these factors are considered, it is clear that Congress created a remedy for a wrong, but recognized the rights of the several states to apportion their limited resources to address issues deemed important by the local electorate.

In 1944, Alfred Testa purchased an automobile in Providence, Rhode Island, for $210 above the ceiling price set under the then existing Emergency Price Control Act.  After learning of the auto dealer=s misfeasance, he filed suit in state court to recover penal damages for this wrong.  Congress had, in creating the law, conferred concurrent jurisdiction on federal and state courts for claims arising from any alleged violation.  The Rhode Island Supreme Court reversed the award of damages obtained by Mr. Testa on the basis that, absent Rhode Island=s consent, the Congress could not require its courts to entertain such claims.  The Supreme Court unanimously reversed the Rhode Island Court.  Testa v. Katt, 330 U.S. 386 (1947).  The Court noted that Article VI, Section 2 of the Constitution provides:

            This Constitution, and the Laws of the United States which shall

   be made in Pursuance thereof; and all Treaties made, or which

   shall be made, under the Authority of the United States, shall be

   the supreme Law of the Land; and the Judges in every State

   shall be bound thereby, and anything in the Constitution or Law

  of any State to the Contrary not withstanding.@  (capitalization in original)

This supremacy clause has, since the first Congress convened, thereafter been interpreted as conferring jurisdiction on state courts to enforce federal civil laws.  Subsequent Congresses expanded such jurisdiction to federal crimes and actions for penalties and forfeitures.  Testa, 330 U.S. at 390-391.  The Court went on to observe that this view was the subject of much controversy, some violent, until the end of the Civil War.  Indeed, since Claflin v. Houseman, 93 U.S. 130 (1876), a principle of constitutional law has been that wherever Congress creates a remedy there is no valid reason why it should not be enforced in a proper action in state court. Id. at 137. Hence, in this Court=s judgment, not only were private claims under the TCPA permitted in all states, but all states from the date of enactment are required, except as discussed below, to entertain such claims.  This principle may also explain Senator Hollings= precise use of the word venue instead of jurisdiction.

This view is also supported by the distinction between the federal district courts and the trial courts of Illinois.  The former are created by Acts of Congress which has the authority to limit the jurisdiction of such courts in accordance with Article III of the United States Constitution.  As observed by the Court in International Science, the Congress has used this power to direct certain justiciable matters to the Federal Court of Claims, Court of International Trade or to strip district courts of original jurisdiction. International Science, 106 F.3d at 1155-1156.

The trial courts of Illinois are constitutional courts vested with jurisdiction over all justiciable matters.  Article 6 Sections 1 and 9 of the Constitution of 1970.   The only exception is the constitutionally recognized right of the legislature to create administrative bodies.  Hence, under our federal system, the trial courts of Illinois, in accordance with the supremacy clause of the United States Constitution, have original jurisdiction to hear claims seeking a remedy granted by the laws of the United States.

In addition, one issue not discussed by the parties is the disjunctive language used by the Congress.   The words selected are permitted by the laws or rules of court.@  Courts do not have the authority to limit by rule their jurisdiction over cases that are properly brought before them. Admittedly, in some circumstances, Courts for good reason may decline to exercise jurisdiction over a particular case; e.g. interstate forum non convenes.  Rules of Court are used to prescribe procedures or determine assignment of cases properly before the Court.  This disjunctive language also suggests that the Congress was attempting to facilitate the prosecution of these claims while, as will be discussed, acknowledging the sovereignty of the individual state.  This determination is borne by the comments of Senator Hollings who strongly urged these matters be handled efficiently, without the participation of lawyers, in a small claims court.  As discussed during argument, the distinguished gentleman form South Carolina probably never envisioned the use of class action procedures in an effort to remedy what appears to have been perceived by the Congress as a pervasive, but highly individualized, issue adversely affecting commerce.

It is important to observe that the Court in Testa v. Katt, supra, did not discuss the implication of the 10th amendment to the United States Constitution.  That amendment reserves to the states all power not delegated to the United States by the Constitution or prohibited to the states by that compact. While one could argue that the supremacy clause resolves any issue in favor of the constitutionality of the TCPA, recent court decisions cast some doubt upon that perspective. See e.g. New York v. United States, 505 U.S.144 (1992).  A more modern approach to this issue is found in the court=s reasoning in International Science.  Congress cannot, consistent with the 10th Amendment, invade the province of state sovereignty.  Thus, unless a state has affirmatively enacted a similar regulatory scheme, Congress cannot direct a state to enforce a federal claim.  Here, Congress did not so act.  The Congress, in choosing the language of the TCPA, encouraged the several states to enforce a national and uniform policy on this issue but gave each state the unfettered right to direct its judicial resources in response to the needs of its electorate by refusing to allow private claims under the TCPA.  As stated by the Court in International Science:

Congress enacted the TCPA to assist states where they lacked

   jurisdiction; it empowered states themselves to enforce the TCPA

   in federal court; it authorized private enforcement exclusively

  in state courts; and it recognized state power to reject Congress=

  authorization.@ 106 F.3d at 1159. (emphasis added)

Hence, this Court concludes that the TCPA created an opt out@ scheme which allows claims for the federally created remedy absent affirmative legislative action limiting or eliminating said claim.

This rationale is also consistent with the constitutional principle that states have great latitude in establishing the structure and jurisdiction of their own courts.  Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 372 (1990).  Thus, states are under no obligation to create special courts or change procedural rules to facilitate prosecution of claims arising under federal law.  However, consistent with the supremacy clause and absent any explicit state statutory directive, an unmistakable implication from legislative history, or by a clear incompatibility between state court jurisdiction and federal interests, there is a presumption of state court jurisdiction over federal claims.  Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981).

This determination also resolves the second issue raised by Charter One.   The Bank suggests the failure of the legislature to include a private state right of action for the transmission of a commercial fax in 2000, when it created such a claim for unsolicited telephone advertising,^[8]evidences an intent to reject Congress= authorization or opt out@ of the TCPA private right of action regulatory scheme.  This intent, it is urged, can also be determined from the legislature=s rejection, on two occasions, of attempts to include a TCPA type violation as part of consumer protection laws under ICFA. 

Although Gulf Offshore Co., supra., dealt with the question of concurrent jurisdiction over a federal claim, in the absence of contrary authority, its analysis, with a slight modification, of this issue is most helpful.  There, the Court held that a legislative body=s intent to limit a court=s jurisdiction over a claim could be determined by an explicit statutory directive, unmistakable implication from legislative history or by a clear incompatibility between state court jurisdiction and federal interests. Gulf Offshore Co., 453 U.S. at 478.

There is no explicit action by the state legislature declining to accept jurisdiction over these claims.  The third Gulf Offshore factor should best be modified to determine if there is any incompatibility between state interests and this federal remedy.  The answer again is in the negative.  Indeed, one of the central purposes of the TCPA was to enable states to have jurisdiction over an issue that largely affected interstate commerce.

The final issue to be resolved under this analysis is the implications found in the actions of the state legislature.  The failure to include a remedy for TCPA prohibited conduct can hardly be conclusive evidence of the legislature=s intent to reject Congress= authorization for such claims.  First, the remedy of attorney=s fees found under ICFA is not available under the TCPA.  The legislature could have determined that such a remedy exceeded the congressional authorization to assist in the regulation of interstate commerce by expanding what was designed to be a pro se claim into a much more complex and expensive litigation process.

The second argument by the Bank is the failure to include a private right of action in state court for unsolicited telephone facsimiles in the Telephone Solicitations Act.  First of all, the statute had a specific focus, regulating telephone solicitations.  There is nothing in this Court=s or the legislative record that telephone facsimile advertising was even considered in the Bill or any proposed amendments.  The lack of such historical information would result not in an unmistakable understanding of legislative action but guess and conjecture as to legislative intent.

Finally on this point, the Bank asserts that the failure of the legislature to amend the Illinois penal statute relating to the transmission of unsolicited telephone facsimile messages^[9]which predate the TCPA expresses a legislative decision to reject the Congressional authorization of private rights of action.   In support of their position they cite to R.A. Ponte Architects Ltd. v. Investor=s Alert, Inc., 815 A.2d 816 (C.S.A. MD. 2003), cert grtd 822 A.2d 1224 (2003).  There, the Maryland Special Court of Appeals found that the failure of the Maryland legislature to amend its pre-TCPA statute to grant a private cause of action for money damages, and the failure to enact three bills dealing with issues somewhat related to the use of facsimile machines demonstrated an intent to prohibit a private cause of action in state court for violation of state or comparable federal law. 815 A.2d at 828.

Initially, it must be noted that this decision has been found to express a minority position on the issue.  Condon v. Office Depot, Inc., 855 So.2d 644, 648 (Fla. Dist. Ct. App. 2003).  A clear reading of the decision indicates that contrary to its pronouncement that Court adopted the opt in@ position rejected by this Court.  Finally, it appears the Ponte Court failed to use the proper standard in reaching its conclusion that the failure of the Maryland legislature to create a cause of action it never considered or to so act when it considered other issues meant there was no private right of action.  Thus, the decision in R. A. Ponte is not persuasive.

             2.   DUE PROCESS CLAUSE VIOLATION

Charter One urges this Court to conclude that the statutory penalty of $500 or $1,500 (if knowing or willful) per fax for a violation of the TCPA   (47 U.S.C. 227 (b)(3)) constitutes an unconstitutional taking of property without due process of law.  This conclusion is easily reached, the Bank asserts, when one considers that the damage to the consumer is but a few pennies but the remedy in the context of this class action could result in an award in the tens of millions of dollars.  They suggest by example that a class may consist of a defendant who has sent 100,000 facsimile messages in violation of the statute.  This may have cost consumers $10,000.   The penalty for such conduct is $50 million with a potential multiplier to reach $150 million.  This gross disproportionality violates the due process clause and must be struck down.  The Bank points to the recent decision of the United States Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell, 123 S.Ct. 1513 (2003), as the most recent pronouncement by the Court on this issue.

In State Farm, its insured, Mr. Campbell, attempted to pass six vehicles on a two laned road; his judgment in this regard proved to be poor and resulted in the death of one person and the total permanent disability of another.  Mr. Campbell was sued for damages by the injured parties.  The Plaintiffs offered to settle the matter for the $50,000 policy, but State Farm declined.  Despite strong counsel to the contrary, State Farm took the case to trial assuring Mr. Campbell his assets were secure.  The jury found that he was 100% at fault and awarded damages in the amount of $185,849.  State Farm refused to pay this amount, filed an appeal bond and advised Mr. Campbell to place his home for sale to satisfy the amount of the claim.  Ultimately, State Farm paid the judgment after the Utah Supreme Court affirmed the jury=s verdict.

Mr. Campbell and the injured parties joined forces to bring a bad faith action against State Farm.  During discovery it was learned that State Farm had a national policy to cap losses that Mr. Campbell claimed, and apparently the jury agreed, were tortious.  A verdict of $145 million in punitive damages was returned against State Farm.

In reversing the judgment of the Utah Supreme Court, the Court acknowledged the legal principle that the Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.  State Farm, 123 S. Ct. 1520-1521.  This concern, the Court noted, dates back to the Magna Carta.  The common law procedure for imposition of punitive damages, the Court believes, poses an acute danger of the arbitrary deprivation of property.  The reason is that elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also the severity of the penalty that a state may impose.  BMW of North America v. Gore,

517 U.S. 558, 574 (1996).   The State Farm Court found that the defendant was impermissibly called to answer for unrelated incidents in states other than Utah.  The Court reasoned, in part, that conduct lawful in one State cannot be used to aggravate a penalty in a State where such conduct is illegal.  This defeats the Due Process requirement of notice.  Here, the TCPA claim is a statutory remedy that clearly announces the proscribed conduct and defines the potential penalties. Moreover, the TCPA regulations existed for many years before the allegations of wrongdoing made by the Plaintiff herein.  The decisions of the Supreme Court in State Farm and its rather recent ancestors, see State Farm, 123 S. Ct. 1528 (Ginsburg, J. dissenting), simply have no application to the matter before the Court.         

As suggested by this Court in its earlier decision rejecting a similar argument, the standard to be applied here is found in St. Louis Iron Mountain and Southern Railway v. Williams, 251 U.S. 63 (1919).  In Williams, the Court was called upon to determine the constitutionality of an Arkansas statute which created a private right of action for railroad passengers who were charged more than the rate set by regulation.  An aggrieved passenger was entitled to recover a penalty of not less than fifty dollars nor more than three hundred dollars@ for each offense as well as costs of suit and attorneys fees.  Williams recovered a seventy-five dollar penalty and twenty-five dollars in attorney=s fees after successfully prosecuting such a claim.  The standard to be applied is whether the penalty is Aso severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.@  Williams, 251 U.S. at 67.  This determination of validity is not to be made merely by contrasting the penalty with the possible overcharge in an individual case.  The court must consider the interest of the public, the numberless opportunities for committing the offense and the need for securing uniform adherence to the law.  Williams, 251 U.S. at 68.  The focus of the Court at this point in the proceedings is to determine the facial constitutionality of the TCPA remedy.  In doing so, there must be given recognition to the wide latitude a government is given in protecting public interest.  This Court should not be anxious to substitute its judgment for that of the Congress.  As suggested in this Court=s prior decision in Whiting Corporation v. MSI Marketing, Inc., 02 CH 6332, this decision as to the constitutionality of the remedy as applied may best be resolved once a class is certified.  Subsequent research by the Court indicates this issue may impact on the very issue of class certification.  See Foreman v. Data Transfer, Inc., 164 F.R.D. 400 (E.D. Pa. 1995) and Kenro v. Fax Daily, Inc., 962 F. Supp 1162 (S.D. Ind. 1997).

The Court cannot conclude that the remedy provided by Congress in the TCPA is an unconstitutional deprivation of property without Due Process of Law on this record.

3.   FIRST AMENDMENT ISSUES

The Defendant asserts that the TCPA scheme unconstitutionally impacts on its right of free speech in the commercial setting of advertising.  The main thrust of its argument is that the statute fails to withstand scrutiny under the test set out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).  The Bank posits that the content based restriction on commercial speech is not based upon a constitutionally sufficient rationale; to wit, that assuming a governmental interest is present, the prohibitions set out in the TCPA do not directly advance that interest.  The Defendant also urges this Court to conclude that less restrictive alternatives could satisfy any interest identified by the Congress.

Prior to analyzing the arguments of Charter One, it is important to note that there are no allegations that any of the unsolicited advertisements@ were false, misleading or promoted illegal conduct.  Hence, analysis under the Central Hudson test is proper.

Charter One=s brief suggests there are two prongs to determining whether there is sufficient rationale to justify this Congressional restriction on speech.  The first prong is a determination that the governmental restriction is substantial.  The burden falls upon the Government to establish this factor.  Edenfield v. Fane, 507 U.S. 761 (1993).

Charter One contends the legislative record consists of such anecdotal evidence that, in reality, no governmental interest was identified by the Congress.  The Defendant acknowledges that the TCPA scheme was designed to prohibit the cost shifting effect of commercial advertising by telephone facsimile messages as well as the time and expense incurred when a fax machine is being used to accept and print these unsolicited transmissions.  However, the Bank argues that there was insufficient evidence in the record to allow Congress to  make that determination.

In support of their position, the Defendant points to Turner Broadcasting, Inc. v. FCC, 520 U.S. 180 (1997).  However, it appears to this Court that a careful reading of Turner actually supports the Congressional determination of the policy espoused by the TCPA.  In that decision, the Court upheld the Amust carry commercial non-cable broadcast provisions of statutes regulating the cable television industry.  There, the Court analyzed the materials submitted to Congress and its determinations.  The Court noted that the question to be answered by a court in making a determination of constitutionality is not an objective determination of whether the legislative policy was the correct approach to the issue.  Rather, the Court stated, the question is whether the legislative conclusion was reasonable and supported by substantial evidence in the record.  Turner, 520 U.S. at 212.  The Court will now turn to a discussion of the Congressional deliberations.

During the deliberations on the TCPA legislation, the Congress entertained testimony from many sources.  In addition, Members related personal as well as constituent experiences and complaints concerning this practice.  For example, as to the cost shifting issue, the Congress heard testimony that, in 1989, California=s consumers lost between $250,000-375,000 per year in printing these unsolicited materials.  Hearing before the Subcomittee on Telecomm. And Fina. Of the House Committee on Energy and Commerce, 101^st Cong., 56 (1989) (statement of Prof. Ellis).  This testimony also related that one company engaged in this activity had by that time assembled a database of 500,000 fax numbers and was routinely sending out 60,000 fax messages per week.

The Congress also heard testimony that this industry would steadily increase its technological capabilities and its attendant ability to transmit massive volumes of fax messages.  The intervenor=s brief cites to a website of a defendant in another related case to support the Congress= predictive judgment.  It boasts, in 2004, of being one of more than 400 entities engaged in transmitting facsimile advertisements.  The site claims that its sponsor personally sends more than one million such messages per week.  (Int. Br. pp 16-17).

Finally, the Congress heard significant testimony on the disruption of business by the seizure effect such messages have on telephone lines and facsimile machines.

In contrast, Charter One advances no evidence as to the accuracy of the information presented to the Congressional subcommittee and presented to the Congress.  Given the substantial deference that Courts must give to the predictive judgments of Congress, indeed the Court=s role is limited to assuring that, in formulating its policy, Congress has drawn reasonable inferences based on substantial evidence. Turner Broadcasting Systems, Inc. v. FCC, 512 U.S. 622, 666 (1994), this Court can reach no other conclusion but that unsolicited telephone facsimile messages disrupt business by interrupting its orderly flow and unfairly shifts advertising costs from the merchant to the consumer.  These are substantial interests that Congress in its constitutional responsibility to regulate commerce can protect.  Moreover, the material submitted by the Intervenor validates Congress= predictive judgment.

The Defendant next posits that, assuming protectable interests exists, the total ban of unsolicited facsimile advertisements does not directly advance the government interest asserted.  Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).  The Bank acknowledges that Congress need not make progress on every front before it can make progress on any front.  United States v. Edge Broadcasting Co.,  509 U.S. 418 (1993).  Nevertheless, Charter One posits there is not the reasonable fit required between the TCPA total ban on unsolicited telephone facsimile advertising and the interests advanced.  The main thrust of their position focuses on the failure of Congress to ban facsimile messages that contain political, junk or charitable messages.  These messages consume the same amount of paper and ink as the banned messages.  This permitted form of speech also disrupts business by seizing control of the recipients business equipment.

To support its position, the Defendant cites to cases in this area such as Edenfield v. Fane, supra., and City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).

In Edenfield, the Court struck down as violative of the First Amendment Florida=s total ban on client solicitation by Certified Public Accountants.  The Court began its analysis by acknowledging that solicitation is a recognized form of speech protected by the First Amendment.@  International Society for Krishnar Consciousness v. Lee, 501 U.S. 672, 677 (1992).  It then examined the two asserted interests the regulation was designed to protect; i.e. eliminating fraud or overreaching by CPA=S and maintaining the independence of the audit process.  Each, the governing board advanced, would be compromised as competitors would be increasingly called upon to cut prices or be more compliant to a client=s needs to obtain or retain business.  The Court acknowledged the substantial nature of the governmental interest.

However, the Court found that a total ban on such solicitation did not directly advance the interests involved.  In making that determination, the Court noted that 21 States place no restrictions on solicitations by CPA=s, only three States besides Florida have enacted a total ban.  The Court also observed the ban was enacted without any evidence, study or even anecdotes to suggest the stated interest would be served by the ban.  Edenfield, 507 U.S. at 772.  Indeed, the Court found the one report preferred in support of the ban actually undermined the regulator=s position. Id. at 772-773.  Nor could the ban, the Court found, be justified as prophylactic in nature.  In rejecting the position that the setting of such solicitations, i.e., private offices or conversations were prone to abuse and difficult to regulate, the Court emphasized the training of members of the accounting profession, and the absence of any threat of overreaching due to the emotional status of the party being solicited.  The Court noted that decisions to hire an accountant are deliberate in nature and any potential for harm is minimal.  This, the Court found was different from the partial ban approved on lawyer solicitations of accident victims.  Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).  In the later situation the Court acknowledges a prophylactic ban was appropriate because the harm sought to be avoided would have occurred at the outset of the solicitation. Id. at 777.

In Discovery Network, the Court struck down the application of an existing ordinance prohibiting the distribution of handbills to limit the placement of dispensing racks to distribute the defendant=s commercial paper.  In making this determination, the Court noted that the ordinance had long been in existence before the City determined that it was a potential tool to ease the perceived blight and promote traffic safety.  The Court also observed that only 62 of the offending racks were being removed while between

1, 500 and 2,000 remained in place unaffected by enforcement efforts.  These racks were used to distribute newspapers, a category not defined by the ordinance but by executive fiat.  It was significant, the Court observed, what is patent to anyone who peruses our daily newspapers, that 70% of their content is devoted to advertising the availability of goods or services.  Discovery Network, 507 U.S. at 420 (fn.16).  This fact, the Court determined, eliminated any distinction between the publications that were banned or permitted.  In its opinion, the Court reminded the litigants that speech proposing a commercial transaction was entitled to lesser protection than other constitutionally protected expression. See Ohralik v.Ohio State Bar Assn., 436 at, 455-456.  Thus, the Court recognized that a distinction has historically been drawn between commercial and non-commercial speech, but found that on the record there was no appreciable difference in content between the Defendant Discovery Network=s publication and those classified as newspapers. The Court reasoned that as a result the distinction drawn by Cincinnati bore no appreciable relationship to the restrictions imposed.  The Court specifically declined to determine whether, given certain facts and under certain circumstances, differential treatment of commercial and non-commercial speech is justified.  Discovery Network, 507 U.S. at 429.

It is clear to the Court that the definition of unsolicited advertisement@ found in the TCPA is consistent with the definition of a commercial transaction as defined by the Supreme Court; i.e., proposal for a commercial transaction.  Board of Trustees of the State University of N.Y. v. Fox, 492 U.S. 469, 473-474 (1989).  The TCPA=s ban on commercial speech does have a prophylactic effect on unsolicited telephone facsimile advertising.  This can be justified under Ohralik, supra., because the harm sought to be prevented occurs at the time the transmission is made.  In addition, unlike the total ban on solicitation in Edenfield, Congress recognized a significant negative impact on commerce and enacted a closely tailored statute.  In contrast to the glaring absence at the state level of regulation of solicitation by CPA=s, the Congress received evidence that efforts by an increasing number of states to regulate in this area were thwarted by the interstate nature of the telephone facsimile issue.  Hence, this Court finds that the restriction directly advances the valid regulatory concerns identified by Congress.

Moreover, there is a clear relationship between banning commercial speech and allowing charitable and political use of this medium of communication.  First, Congress received evidence that only a small number of unsolicited messages were non-commercial.  In addition, the public had no serious objection to receiving such information.  The Congress, as noted above, pointed to the actual damage to business owners by way of additional costs of doing business as a result of receiving commercial messages.  In addition, evidence suggested the additional burdens, not easily calculable, imposed by a lack of timely access to necessary business equipment during the increasingly frequent times the unsolicited commercial telephone facsimiles are sent was adversely affecting commerce.

The cases relied on by the Defendant have for the most part, in subsequent proceedings, followed the Eighth Circuit Court of Appeals decision in Missouri ex.rel. Nixon v. American Blast Fax, Inc., 323 F3d 649 (C.A. 8^th 2003), cert. den. 124 S.Ct. 1043 (2004).  See Rudgayzner & Grath v. Enine, Inc., 204 N.Y. Misc. Lexis 420 (4/14/04).

Finally, the restriction chosen by the Congress is not more extensive than necessary to advance the interest at stake.  The Bank recognizes that there must be a reasonable fit between the regulation and the interest sought to be protected.  Board of Trustees v. Fox, supra.  Charter One argues that at least two alternatives are less restrictive and hence a better fit First, the Defendant points to the California opt out@ scheme.  This allows the sender of the message to furnish the recipient with a toll free number which will prevent the recipient from receiving further facsimiles.  The second is a national Ado not fax@ list.   Anyone who does not desire to receive this type message can sign up and be placed on a list and will not receive these communications.  The Defendant suggests this would better identify those individuals who welcome this information and separate those persons from consumers who desire to receive only certain types of unsolicited messages or no messages at all.

The analysis of this issue does not permit the Court to substitute its judgment for that of the Congress.  Rather, the Court must examine the existing regulations on their own merit and determine whether they achieve a reasonable fit.  Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).  The TCPA scheme does act to prevent the cost shifting goal set forth by the Congress.  Moreover, the Defendant suggests an affirmative duty should be imposed upon businesses and private persons in order to protect their property and be free to conduct their businesses.  Those persons who desire to enter into commercial transactions have numerous and cost effective ways of reaching customers.  They can conduct direct mailings, purchase advertising in newspapers or other media.  Indeed, they can create low cost websites that can be easily googled. There is no reason to suggest the TCPA fails to pass muster on the fourth prong of the Central Hudson test.

Hence, the Court can find no First Amendment infirmities in the TCPA regulatory scheme.

      4.   COUNT II B CONVERSION

The Defendant correctly sets out the elements of the tort of conversion. The gist of the Bank=s argument appears to be that, by placing paper in a fax machine, an owner is parting with control, dominion or ownership of that property.  By analogy, the Court surmises, if one were to leave their bicycle on the front porch for friends to see and the newspaper delivery person decided that it would be handy and takes it, there would be no theft.  The Bank=s argument ignores the plain fact that the sending of unsolicited advertisements is illegal.  Everyone has the right to rely on others obeying the law.  Hence, the Plaintiff has made out a claim.

            5.    Count III Illinois Consumer Fraud and Deceptive  

        Practices Act (ICFA)

In Count three of the Plaintiff=s complaint, it is alleged that the sending of one telephone facsimile message is a violation of the Illinois Consumer Fraud and Deceptive Practices Act. In Whiting Corporation v. MSI Marketing, 02 CH 6332, this Court extensively analyzed the requirements for a valid complaint under the Act. As the ICFA does not list a violation of the Illinois fax statute as a per se violation, the Plaintiff must satisfy the requirements set forth in Robinson v. Toyota Motor Credit Corporation, 201 Ill. 2d 403 (2002). A plain reading of the Plaintiff=s complaint yields that the Count alleging a violation of the ICFA is legally insufficient. However, as indicated in the Whiting opinion, the Plaintiff may be able to set out a valid claim in individual cases.   Finally, the Plaintiff should analyze this issue in terms of the right of Congress to regulate interstate commerce.  Therefore, the Plaintiff is given leave to file amended Counts alleging an ICFA violation in those Class B and C category cases that are subject to the ruling entered today.

6.   COUNT IV B PROPERTY DAMAGE

             Property damage is to this Court=s understanding an element of a form of intentional or negligent tortius conduct.  It is not an independent tort.  This Count will be dismissed with prejudice.

IV.      Order

A. The Defendant=s Motion to Dismiss Counts I & II are denied;

B.  The Defendant=s Motion to Dismiss Counts III & IV are granted, the Plaintiff                  is given leave to file amended complaints alleging violations of ICFA consistent with this Memorandum of Opinion and Order against any individual defendant;

C.  The Class A and B cases are set for case management on July 13, 2004 at 1:00 P.M;

D.  Any discovery stay order in Class B cases is hereby lifted.

ENTER:          ______________________________

Judge                                       1510

EXHIBIT A

03 CH 10966             INSPE v. CBSK

03 CH 9912               Trout Grouse, LLC v. CBSK

03 CH 10844             Rawson v. Levin

03 CH 10667             Damas & Block v. Erogtron

03 CH 12538             Travel 100 v. Mediterranean Shping Co.

03 CH 0955               Novak v. Hotels.com

03 CH 1540               Travel 100 Grp v. Oceania Cruises, Inc.

03 CH 8921               Rawson v. McLeod USA

03 CH 8477               Telecommunications v. McLeod USA

03 CH 10967             Jos. Younes v. Impact Networking

03 CH 10725             Flexicorps v. Impact Networking

03 CH 11321             Flexicorps v. Bridge 21

03 CH 11650             Kaufman v. Bridge 21