Brief in Worsham v. Nationwide Insurance Company, filed August 30, 2000 - This is the brief filed by Michael Worsham in an important Telephone Consumer Protection Act case. The brief argues that Nationwide is liable for the acts of its agents in making telephone solicitation. Oral argument is scheduled for December 2000 in the Maryland Court of Special Appeals. [Table of Contents]   Download Brief in WORD Rich Text File (RTF) Format

In The Court of Special Appeals of Maryland No. 454 September Term 2000   MICHAEL C. WORSHAM Appellant, vs. NATIONWIDE INSURANCE COMPANY Appellee,   Appeal from the Circuit Court for Harford County, Maryland (The Honorable Emory A. Plitt, Judge)   BRIEF AND APPENDIX FOR APPELLANT MICHAEL C. WORSHAM   Michael C. Worsham, Esq., Pro se 1916 Cosner Road Forest Hill, Maryland 21050 (410) 557-6192 Attorney for Appellant

TABLE OF CONTENTS
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Table of Citations		iii
Statement of the Case		1
Questions Presented		2
Standard of Review		3
Statement of Facts		4
Argument		5

I.	THE CIRCUIT COURT WRONGFULLY DECIDED AN ISSUE OF MATERIAL FACT ON A MOTION FOR SUMMARY JUDGMENT.	5
II.	NATIONWIDE'S INSURANCE AGENTS ARE NOT INDEPENDENT CONTRACTORS	6
	A. The Nationwide Agent's Agreement Does Not Create An Independent Contractor Relationship 6 B. Nationwide Is Liable Under The TCPA Whether Their Agents Are General Agents Or Independent Contractors 10 C. Nationwide's Agents Can Be "Affiliated Entities" Under the TCPA 13
III.	THE TCPA PROVIDES A PRIVATE RIGHT OF ACTION FOR VIOLATIONS OF THE FCC REGULATIONS	16
IV.	LIABILITY UNDER THE TCPA INCLUDES VIOLATIONS MADE DURING THE FIRST CALL	20
V.	WILLFUL OR KNOWING VIOLATIONS OF THE TCPA DO NOT REQUIRE A SHOWING OF INTENT	23
Conclusion		27
Text of Statutes, Regulations and Definitions		28

Appendix:	Letter from Geraldine A. Matise, Chief, Network Services Division, Common Carrier Bureau, FCC, to Janice M. Parker, Assistant Attorney General, Consumer Fraud Bureau, Chicago, IL, June 11, 1996	App. p. 1
	Letter to Robert Biggerstaff from Glenn T. Reynolds, Common Carrier Bureau, FCC, July 27, 1999	App. p. 3

TABLE OF CITATIONS
Cases Cited:	Page
Admiral Mortgage, Inc. v. Cooper, 357 Md. 533 (2000)	26
Alva Steamship Co., Ltd. v. City of New York, 616 F.2d 605 (2d Cir. 1980)	13
Audio Enterprises, Inc., Notice of Apparent Liability for Forfeiture, 3 FCC Rcd 7233 (1988).	23
Charvat v. Colorado Prime, Inc., No. 97APG09-1277, 1998 WL 634922 (Ohio App. Sept. 17, 1998), cert. denied, 704 N.E. 2d 578, 84 Ohio St. 3d 1470 (1999).	22
Coca Cola Co. v. Atchison, Topeka, and Santa Fe R.R. Co., 608 F.2d 213 (5th Cir, 1979).	23
FAA v. Landy, 705 F.2d 624 (2nd Cir. 1983).	20
In the Matter of Get-Aways, Inc., 15 FCC Rcd 1805 (Dec. 15, 1999).	25, 26
In the Matter of Long Distance Direct, Inc., 15 FCC Rcd. 3297 (Feb. 17, 2000).	12, 13
In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 13, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995).	10
Kaplan v. First City Mortgage, 701 N.Y.S.2d 859 (N.Y. City Ct. 1999).	24
Liability of Outlet Communications, Inc. and Atlin Communications, Inc., 7 FCC Rcd 632 (1992).	23
Medical Mutual Liab. Ins. Soc'y of Maryland v. The Mutual Fire, Marine and Inland Ins. Co., 37 Md. App. 707, 713 (1977).	11
Midwest Radio-Television Inc., 45 F.C.C. 1137 (1963).	24
P. Flanigan & Sons v. Childs, 251 Md. 646, 648 (1967).	5
Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).	25
Stinson v. United States, 508 U.S. 36, 45 S.Ct. 1913, 123 L.Ed.2d 598 (1993).	19
Syme v. Marks Rental, Inc., 70 Md. App. 235 (1987).	3
Szefczek v. Hillsborough Beacon, 668 A.2d 1099 (N.J. Super. 1996).	19, 20
United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 393 (9th Cir. 1979).	20
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 812 (1995).	26
Winmark Ltd. Partnership v. Miles & Stockbridge, 109 Md. App. 149 (1996).	3

Statutes
47 U.S.C. § 21	25
47 U.S.C. § 37	25
47 U.S.C. § 202	25
47 U.S.C. § 205(b)	25
47 U.S.C. § 217	12, 13, 15
47 U.S.C. § 220(e)	25
47 U.S.C. § 223(a) and (b)	25
47 U.S.C. § 226(b)(1)(G)	25
47 U.S.C.§ 227	13, 16, 24, 25
47 U.S.C. § 227(b)(1)(B)	18
47 U.S.C. § 227(b)(1)(C)	18
47 U.S.C. § 227(b)(3)	18
47 U.S.C.§ 227(c)	17, 18
47 U.S.C. § 227(c)(1)	18
47 U.S.C. § 227(c)(1)(E)	15
47 U.S.C. § 227(c)(5)	16, 17, 18, 21, 23, 26
47 U.S.C. § 227(c)(5)(A)	18
47 U.S.C. § 227(f)(1)	21
47 U.S.C. § 227(f)(1)	21
47 U.S.C. § 231(a)	25
47 U.S.C. § 303(m)(1)	25
47 U.S.C. § 312(f)	23, 24, 25
47 U.S.C. § 325(a)	25
47 U.S.C. § 333	25
47 U.S.C. § 339(a)	25
47 U.S.C. § 362	25
47 U.S.C. § 386	25
47 U.S.C. § 501	25
47 U.S.C. § 502	25
47 U.S.C. § 503	21, 25
47 U.S.C. § 503(b)	25, 26
47 U.S.C. § 507	25
47 U.S.C. § 509(a)	25
47 U.S.C. § 510(a)	25
47 U.S.C. § 553	25
47 U.S.C. § 554(f)(1)	25
47 U.S.C. § 554(f)(2)	25
47 U.S.C. § 605(e)(1) & (2)	25
47 U.S.C. § 606(h)	25
47 U.S.C. § 612	25
Ga. Code Ann. § 46-5-27(c) and (d) (1999)	21
Md. Code. Ann. Insurance Article § 1-101(c)(1999)	10
Md. Code. Ann. Insurance Article § 1-101(i)(1999)	10

Statutory History
H.R. Conf. Rep. No. 765, 97th Cong., 2nd Sess. (1982), 1982 U.S.C.C.A.N. 2261 at 50-51	24
H. R. Rep. No. 317, 102nd Cong., 2nd Sess. 19-20 (1991)	21
Regulations
47 C.F.R. § 64.1200(e)(1)	21
47 C.F.R. § 64.1200(e)(2)(ii)	20
47 C.F.R. § 64.1200(e)(2)(iii)	10, 20, 22
47 C.F.R. § 64.1200(e)(2)(iv)	21
47 C.F.R. § 64.1200(e)(2)(v)	6, 16
47 C.F.R. § 64.1200(e)(2)(vi)	19
Rules
Rule 2-501	3
Definitions
subscriber, from the Telecommunications: Glossary of Telecommunication Terms	13
user, from the Telecommunications: Glossary of Telecommunication Terms	12

STATEMENT OF THE CASE On September 10, 1999 the Appellant filed a Complaint in the Circuit Court of Maryland for Harford County alleging seven violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (TCPA). These allegations included: 1) failure to train personnel (two separate counts); 2) failure to record a do-not-call (DNC) request; 3) failure to provide proper identification (two separate counts); 4) failure to maintain a record of a DNC request; 5) failure to provide a DNC policy on demand. The Appellee filed a Motion to Dismiss on December 17, 1999, to which the Appellant filed a Response on January 3, 2000. The Appellee filed an Amended Motion to Dismiss or in the Alternative, Motion for Summary Judgment, on February 4, 2000, to which the Appellant filed a Response on February 22, 2000. On April 12, 2000 the Appellee filed a Reply to Plaintiff's [Appellant's] Response to Defendant's [Appellee's] Amended Motion to Dismiss Plaintiff's Complaint, or in the Alternative, Motion for Summary Judgment. On April 14, 2000 oral argument on Appellee's Motions was heard in the Circuit Court for Harford County before The Honorable Emory A. Plitt, Jr. On April 27, 2000 Judge Plitt of the Circuit Court for Harford County granted Appellee's Motion for Summary Judgment in a Memorandum Opinion. E. 8-17. On May 1, 2000 Appellant timely noted an appeal from the Circuit Court for Harford County to the Court of Special Appeals. On May 22, 2000 this Court issued an Order directing that this appeal proceed without a Prehearing Conference.

QUESTIONS PRESENTED
I.	Whether the Circuit Court wrongfully decided an issue of material fact on a Motion for Summary Judgment.
II.	Whether Nationwide's insurance agents are independent contractors.
III.	Whether the TCPA provides a private right of action for violations of the FCC regulations.
IV.	Whether liability under the TCPA includes violations made during the first call.
V.	Whether willful or knowing violations of the TCPA require a showing of intent.

STANDARD OF REVIEW The standard for appellate review in an appeal of the decision of a trial court which grants or denies a motion for summary judgment is whether the trial court was legally correct, and the Court of Special Appeals reviews the same material from the record and decides the same legal issues as the circuit court. Winmark Ltd. Partnership v. Miles & Stockbridge, 109 Md. App. 149 (1996). When ruling on a Motion for Summary Judgment the Court must address two separate issues: (1) whether there is no genuine issue of material fact; and (2) whether the movant is entitled to judgment as a matter of law. Maryland Rule 2-501(e); Syme v. Marks Rental, Inc., 70 Md. App. 235 (1987) (and Court of Appeals decisions cited therein). The Court should not attempt to resolve any issues of fact or of credibility of witnesses which are matters to be left to the jury (trier of fact). Id. Even where the underlying facts are undisputed, if those facts are susceptible to more than one permissible inference, the choice between those inferences should not be made as a matter of law. Id. The court must accord great deference to the opposing party when a motion for summary judgment has been filed, and the court must resolve all inferences against the party seeking summary judgment. Id.

STATEMENT OF FACTS The case arises from two telemarketing solicitations made to the Appellant, Michael C. Worsham. On April 22, 1999 the Appellant received a telephone solicitation for insurance from a woman calling from a Nationwide insurance agent. E. 50, 9 and E. 52, 5. Appellant had never made any previous inquiries to Nationwide regarding insurance. E. 51, 21. Appellant alleges the woman who called him identified herself as Lisa and called on behalf of Nationwide. E. 50, 4 and 10. Lisa asked Appellant three questions regarding insurance. E. 50, 5. The Appellant told Lisa he was not interested, and requested that his telephone number be placed on the do-not-call (DNC) list. E. 50, 6. Lisa did not provide an address or telephone number to Appellant during the call. E. 50, 8. On May 18, 1999 the Appellant received a second telephone solicitation for insurance from a woman who identified herself as Charlotte and calling on behalf of Nationwide. E. 51, 11. Charlotte asked Appellant the same three questions regarding insurance that Lisa had asked Appellant during the April 22, 1999 call. E. 51, 12. Appellant requested of Charlotte that he not be called again, and requested a copy of the caller's DNC policy. E. 51, 13 and 15. Charlotte did not provide an address or telephone number of Nationwide to Appellant. E. 51, 17. Appellant never received a copy of the DNC policy. E. 50, 20.

ARGUMENT I. THE CIRCUIT COURT WRONGFULLY DECIDED AN ISSUE OF MATERIAL FACT ON A MOTION FOR SUMMARY JUDGMENT. The Circuit Court erred by deciding an issue of material fact regarding agency on a motion for summary judgment. In Maryland, whether an agency relationship exists is ordinarily a question of fact. P. Flanigan & Sons v. Childs, 251 Md. 646, 648 (1967). Appellant alleged and stated in his supporting Affidavit that during both of the calls to him on April 22, 1999 and May 18, 1999, the callers identified themselves as calling on behalf of Appellee Nationwide. E. 50 4 and E. 51 11. Appellant further swore that neither caller identified themselves as calling on behalf of any specific Nationwide agent or office. E. 50 10 and E. 51 19. Thus, the straightforward conclusion is that the callers were calling on behalf of the same entity, Nationwide. The Circuit Court ruled that the first caller, Rick Gerety & Associates ("Gerety"), is an independent contractor of Nationwide, and that therefore the Appellant's do-not-call (DNC) request only applied to Gerety. E. 14. The Court based its decision on the Nationwide "Agent's Agreement" (AA), printed at E. 56-65. However, before even analyzing this agreement, Appellant questions both its admissibility and relevancy to the instant dispute. Nationwide chose an Agreement which is not the Agreement for Gerety, the one agent Nationwide admits to have engaged in telemarketing, E. 52-53, but an Agreement for one of its Ohio agents that is over 10 years old and dated Jan.1, 1989. Nationwide simply handpicked an Agreement that contained a clause they wanted the Court to see, specifically paragraph 1 of the Agreement, Independent Contractor. However, as Appellant will argue, infra, even this Agreement, or even the actual independent contractor status of its agents, does not absolve Nationwide from liability under the TCPA. Likewise, it was incorrect on summary judgment for the Court to rule on the material factual issue of whether Nationwide's agents are "affiliated person or entities." This is a key term relevant to liability under the FCC's regulations, which provide that: (v) Affiliated persons or entities. In the absence of a specific request by the subscriber to the contrary, a residential subscriber's do-not-call request shall apply to the particular business entity making the call (or on whose behalf a call is made), and will not apply to affiliated entities unless the consumer reasonably would expect them to be included given the identification of the caller and the product being advertised. 47 C.F.R. § 64.1200(e)(2)(v). As noted earlier, appellant has sworn specifically that the callers identified themselves as being with Nationwide, and did not identify themselves as being with any specific agent of Nationwide. Thus, the "particular business entity making the call (or on whose behalf a call is made)" is Nationwide. If the Court did not see this, it erred in determining whether the two callers were "affiliated entities" of Nationwide, because to do so is to make a factual determination.   II. NATIONWIDE'S INSURANCE AGENTS ARE NOT INDEPENDENT CONTRACTORS A. The Nationwide Agent's Agreement Does Not Create An Independent Contractor Relationship Although the Circuit Court was wrong to decide the factual issue of agency of Nationwide agents, it is nonetheless clear even from the information presented to that Court that Nationwide agents are not independent contractors. The Agent's Agreement which Nationwide attached to its motion for summary judgement was written to benefit Nationwide, and demonstrates the tremendous control exercised by Nationwide over its agents. The Preface of this Agreement makes it clear that the contract is for Nationwide's benefit. It states that: The overall objectives of this Agreement are: 1. To provide a relationship which will result in the best possible service to the customer. 2. To assist the Agent in establishing and maintaining a growing agency which is profitable to both the Agent and the Companies. 3. To maintain the Companies' financial strength at the level necessary to protect the policyholders' interest. E. 56, top. Sentence 2 above unambiguously demonstrates that a call by a Nationwide agent can be and is made with the objective of profiting both the agent and Nationwide. Nationwide can not claim that these sales calls made by its agents are not made, at least in part, on Nationwide's behalf. Sentence 3 above states clearly that one of the prime overall objectives of the Agreement is to "maintain the Companies' financial strength" (emphasis added). Nationwide can not evade liability under the TCPA by claiming that its agents are "independent contractors," when the very Agreement it has with those same agents is clearly written with overall objective to financially benefit both Nationwide and the agents in a mutually beneficial and ongoing relationship. Of course the same telemarketing and sales activity benefits the agent as well as Nationwide, but the fact that the agents may benefit, does not absolve Nationwide of liability, any more than if Nationwide had hired a single telemarketing call center to handle all of its calls, and the telemarketing call center benefitted by the sales it made for Nationwide. Another relevant section of the Agreement is the paragraph titled "Independent Contractor." E. 56 at 1. This states, inter alia, that: All such property furnished to you by the Companies or on behalf of the Companies shall remain the property of the Companies and be returned to them in good condition upon any cancellation of this Agreement. We may offer you, from time to time, training, counsel, and guidance based upon our accumulated experience in the sale and servicing of business. This paragraph states that Nationwide controls and maintains ownership of the materials it provides its agents. This paragraph also specifies that Nationwide offers its agents "training and guidance" in the "sale and servicing of business," which would naturally include telemarketing. Presumably the materials and training referred to above includes telemarketing sales scripts, such as that used to solicit Appellant. This paragraph also states the Nationwide even offers its agents "counsel," i.e. legal advice, regarding sales and service. These are not the hallmarks of an independent contractor relationship. The most important clause in the Agreement is paragraph 4, "Exclusive Representation," which provides that "It is agreed and understood that you will represent us exclusively in the sale and service of insurance." E. 57 (emphasis added). This clause directly contradicts Nationwide's claim that the agents are independent contractors. Independent contractors do not contract for indefinite exclusive representation. If Nationwide agents were truly independent contractors, they would be free to solicit and sell insurance for other insurance companies, the way insurance brokers are free to do. Additional support for the position that telemarketing calls by Nationwide agents are for the benefit of Nationwide itself is provided in the Agreement section titled "Service to Customer Upon Cancellation." E. 57, bottom. This section states that "Upon cancellation of this Agreement, it is understood that the Companies retain the right to continue to provide insurance services to any and all customers and to continue to solicit such customers for additional business." This language illustrates that control over the customers being solicited by and for Nationwide's supposedly "independent contractor" agents, is, in fact, retained by Nationwide, at Nationwide's sole discretion. This Agreement prohibits Nationwide's agents from keeping the customers that are successfully solicited, and refutes any Nationwide claim that the agent is soliciting either for, or at least only for, the agent's behalf. Yet another key section of the Agreement is paragraph 14, "Pricing, Products, Rules, and Regulations." E. 62, 14. This clause again demonstrates the control that Nationwide has over its agents in accepting and writing policies: [I]t is understood and agreed that each Company will prescribe rules, regulations, prices, and terms under which it will insure risks, and each Company retains the right to change, alter or amend such rules, regulations, prices, and terms, including the right to limit, restrict, or discontinue entirely the acceptance or writing of any policies, coverages lines or kinds of insurance, at any time it deems it advisable to do so, and without notice or consent of the Agent. . ." Id. (emphasis added). This clause clearly establishes that Nationwide controls how policies are written, including in particular whether a policy will even be accepted at Nationwide's sole discretion. A final piece of evidence in the Agreement of the overwhelming control Nationwide exerts over its agents is in paragraph 15, "Authorization to Direct Bill." E. 62, 15. This states that "The agent and the Companies agree that it is to their mutual benefit for the Companies to bill the policyholders directly. The agent hereby gives the Companies permission to use his name on those billings . . ." Thus, the very customers being solicited by Nationwide's agents are billed not by the supposedly "independent contractor," but by Nationwide itself. Thus Nationwide controls even the billing over the customers which the agents solicits and services. In summary, in Nationwide's Agreement with its agents, Nationwide completely controls every aspect of how the terms, prices, restrictions, and acceptances of the insurance policies its agents sells are made. Nationwide controls and does the billing for all the customer policies its agents sell. Nationwide retains control over servicing any and all policies with policyholders should the Agreement with the agent be terminated. Nationwide provides training and guidance and counsel for its agents for the sales and servicing of the business, and retains ownership in all the materials it provides to its agents. Finally, and most notably, the agents are restricted to soliciting insurance exclusively for Nationwide. Now, from this Agreement, Nationwide would have the court accept that Nationwide's agents are independent contractors, similar to 'brokers' which are defined as "a person that, for compensation, solicits, procures, or negotiates insurance contracts or the renewal or continuance of insurance contracts: (1) for insureds or prospective insureds other than the broker; and (2) not for an insurer or agent." Md. Code Ann., Ins. § 1-101(i)(1999). The terms of the Agent's Agreement discussed above are completely at odds with an independent contractor or broker arrangement. Nationwide's agents are de facto employees of Nationwide, but even if not employees, these agents are certainly not independent contractors.

B. Nationwide Is Liable Under The TCPA Whether Their Agents Are General Agents Or Independent Contractors The FCC's regulations impose vicarious liability on telemarketers for regulatory violations, including failure to record and honor DNC requests. The FCC's regulations provide that "If such requests are recorded or maintained by a party other than the person or entity on whose behalf the solicitation is made, the person or entity on whose behalf the solicitation is made will be liable for any failures to honor the do-not-call request." 47 C.F.R. § 64.1200(e)(2)(iii). This provision for vicarious liability includes agents, as stated by the FCC in a decision in one of its Orders clarifying its regulations: "Decision. Our rules generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations. Calls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 13, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995) (emphasis added). This clarification prevents the excuse used by Appellee to try to escape liability under the statute: it was not us, it was our allegedly independent agents/contractors. Nationwide agree that its agents are "agents" as that term is defined in the Insurance Article, § 1-101(c)(1999). The real issue here is whether the "agents" are common law agents acting under either express authority, or implied authority, and thus capable of binding the principal, Nationwide, with respect to telemarketing calls under the TCPA. Nationwide has denied that it is not the master in an employment relationship with its agents. However, the principal-agent relationship is distinguished from the master-servant relationship, "in that an agent is employed to represent the principal in regard to contractual obligations with a third person; a servant is employed to render a service to, rather than for, the master." Medical Mutual Liab. Ins. Soc'y of Maryland v. The Mutual Fire, Marine and Inland Ins. Co., 37 Md. App. 707, 713 (1977) (citations omitted). The test for whether an agent is a general agent "is whether or not the agent has the power to bind the insurer by his contract of insurance, or to issue policies on his own initiative, or to accept risks, and if the agent has actual authority to do these things, he is the general agent; if he cannot place coverage in effect, but can merely initiate negotiations therefor, he is not a general agent." Id. at 714 (citations omitted). If Nationwide's agents have the power to bind Nationwide, as appears to be the case, then they are Nationwide's general agents, with the authority to bind the principal, Nationwide. The extent of the agent's authority to bind Nationwide is not clear from the Agreement. E. 62, 16. However, even if the agents do not have the power to bind, and only Nationwide can ratify any insurance policy provisionally made by one of its agents through a telemarketing call, then Nationwide is even more clearly the person on whose behalf the call was made, since in that case it would be Nationwide, and not the agent, who completes and legally binds the transaction which the telemarketing call initiated. Thus, Nationwide is liable under the TCPA, either through the act of one its general agents with full binding authority, or as the entity on whose behalf the call was made by one of it telemarketing agents. Nationwide has cited the Independent Contractor section of its Agent's Agreement to support its contention that its agents exercise independence regarding the time, place and manner of soliciting insurance. It was pointed out supra that Nationwide controls virtually everything - whether to accept a policy, the billing, control over materials, and control of the account when the agent leaves. However, the fact that Nationwide does not control the time and place that its agents place phones calls is not determinative of independent contractor status. Indeed, it would unusual and practically impossible for Nationwide to attempt to micro-manage its 1000's of agents in that way. What is more indicative is whether Nationwide controls the content of the solicitations its agents use, and the authority to bind prospective customers. The facts on these two points has not yet been fully developed in this case. Nationwide has argued that the FCC decision In the Matter of Long Distance Direct, Inc., 15 FCC Rcd. 3297 (Feb. 17, 2000) ( holding common carriers liable for the acts of independent contractors), does not apply to them because the decision is based on 47 U.S.C. § 217, which Nationwide argues applies only to common carriers. However the statute provides that the " . . .omission, or failure of any officer, agent, or other person acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or user as well as that of the person." 47 U.S.C. § 217 (emphasis added). The statute provides liability for a 'user,' as well as a common carrier. The term 'user' is defined by the FCC as a person, organization, or other entity (including a computer or computer system), that employs the services provided by a telecommunication system, or by an information processing system, for transfer of information. (188) Note: A user functions as a source of final destination of user information, or both. Synonym subscriber . . . Telecommunications: Glossary of Telecommunication Terms, National Communications System Technology & Standards Division, Federal Standard 1037C, page U-5, August 7, 1996 (all emphasis and italics in original). This same glossary defines 'subscriber' in pertinent part as "In a public switched telecommunications network, the ultimate user, i.e., customer, of a communication service. Note 1: Subscribers include individuals, activities, organizations, etc. . ." Id. at S-32 (italics in original). Thus, 47 U.S.C. § 217 provides liability for the acts of independent contractors to ordinary users or subscribers of telecommunications equipment, such as Nationwide, as well as to common carriers. Congress did not need to provide an analogous provision in 47 U.S.C. § 227, since the existing provision at 47 U.S.C. § 217 was comprehensive enough. The FCC noted that "Employers are routinely held liable for breach of statutory duties, even where the failings are those of an independent contractor, and even where the party seeking redress is other than the government." In the Matter of Long Distance Direct, Inc. at n. 12. The FCC relied on Alva Steamship Co., Ltd. v. City of New York, 616 F.2d 605 (2d Cir. 1980), which stated as part of its holding that: Ordinarily, of course, an employer is not liable for the negligence of an independent contractor, but there are several well-recognized exceptions to this rule. One of these is that an employer may remain liable for the negligence of an independent contractor who performs a duty imposed by statute on the employer. 616 F.2d at 609. Thus, even if one accepted the argument that Nationwide's agents are independent contractors, the TCPA and FCC regulations impose a duty on entities like Nationwide to see that the law is obeyed by independent contractors acting on their behalf. This duty is nondelegable, and does not depend on Nationwide being a common carrier.

C. Nationwide's Agents Can Be "Affiliated Entities" Under the TCPA. The term 'affiliated entities' is not explicitly defined by the FCC. The term should be interpreted to effect the TCPA's remedial intention and to provide consumer protection from being called again by entities reasonably expected to be affiliated with a telemarketer. 'Affiliated entities' should not be interpreted as rigidly as the term "affiliate," as Nationwide has argued in its motions. Appellant does not agree with Appellee's assertion that some degree of control must be present for one to be an 'affiliated entity,' but even if it did, Nationwide clearly exercises enough control over its insurance agents for them to be an 'affiliated entity.' Clearly it was reasonable for Appellant to expect his do-not-call request to be transmitted to Nationwide's other agents. It does not matter whether the two callers were working for the same exact Nationwide agent, or for a telemarketing contractor hired by Nationwide. The TCPA and FCC regulations extend the reach of a person's do-not-call (DNC) request, regardless of whether the person specifically asks the caller to do this. The TCPA is a remedial statute passed to protect consumers, and it is the reasonable expectation of consumers that determines the extent of the DNC request. Appellant need not understand, allege, or prove the relationship between the Appellee's agents, subsidiaries, related or affiliated entities, or their respective affiliations. All that is required of Appellant is to make a DNC request. The Appellee and its agents bear the burden of further transmitting that DNC request to all other agents or reasonably affiliated entities that telemarket on behalf of the Appellee. When a person makes a DNC request, the regulation requires that a telemarketer must apply the request to all affiliated entities which "the consumer reasonably would expect . . . to be included given the identification of the caller and the product being advertised." If Appellant was called by someone selling insurance for Nationwide Insurance, it is not just reasonable, but quite obvious, that he expected not to be called again by someone selling insurance for Nationwide Insurance. This is especially so for the callers in the instant case, which Appellant swore in his Affidavit both asked Appellant the same three questions about insurance when they solicited Appellant. The reasonable inference from this is that these same three questions were approved by Nationwide's main corporate office, and then distributed to its agents for use in making calls to solicit and sell Nationwide Insurance policies. The existence of the same Nationwide telemarketing script including the three questions asked of the Appellant demonstrates how these supposedly "independent" agents are dependent on common Nationwide advertising materials (emphasis added). This supports the Nationwide agents being 'affiliated entities' under the TCPA. The Circuit Court wrongfully included in its decision an implicit assumption that the caller for Rick Gerety identified herself as calling on behalf of Rick Gerety, when Nationwide has presented and asserted no facts to support this, and the Appellant has sworn explicitly to the contrary. E. 51, 10. In this factual situation, it was improper for the Court to make a factual determination about what a reasonable consumer would expect regarding "affiliated entities" with respect to the calls made by Nationwide. In addition to making an improper factual determination, it is apparent from its Opinion that the lower Court misunderstood the "affiliated entity" concept. The Circuit Court stated that "if Nationwide insurance agents are considered affiliated entities, the Plaintiff would have no cause of action against the Defendant for the second telephone call." E. 14. This is only correct for affiliated entities outside the scope of a consumer's reasonable expectations of DNC request coverage. Clearly a consumer would reasonably expect a DNC request made to a caller representing herself as being with Nationwide to extend to Nationwide generally. The "affiliated entity" issue would arise only if the Appellant had been called by a second person affiliated with Nationwide but who solicited something other than insurance, such as financial services, or tax services. Nationwide has argued that the TCPA does not specifically address agents' acts and omissions and subsequent liability of carriers, as does 47 U.S.C. § 217. This is not correct. The TCPA instructed the FCC to develop "regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish the purposes of this section." 47 U.S.C. § 227(c)(1)(E). Part of the FCC's regulations, quoted earlier, provide for vicarious liability for affiliated entities of the caller that the called person would reasonably expect to be included in a DNC request. 47 C.F.R. § 64.1200(e)(2)(v). Nationwide is liable under the TCPA either as the business entity making the call, the entity on whose behalf the call was made by one of it's agents, or at the very least, for the acts of its agents as 'affiliated entities' of Nationwide which a consumer would reasonably expect to share a DNC request.

III. The TCPA Provides A Private Right Of Action For FCC Violations The Telephone Consumer Protection Act (TCPA), Pub. L. No. 102-243, 105 Stat. 2394, December 20, 1991, 47 U.S.C. § 227, provides a private right of action for violations of the Federal Communications Commission ("FCC") regulations promulgated pursuant to the statute. 47 U.S.C. § 227(c)(5). This is clear by the plain words of the statute, which contains a separate subsection created specifically to allow a private right of action for live sales telephone solicitations, which reads, in its entirety: (5) Private right of action A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court of that State - (A) an action based on a violation of the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater, or (C) both such actions. It shall be an affirmative defense in any action brought under this paragraph that the Appellee has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection. If the court finds that the Appellee willfully or knowingly violated the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. 47 U.S.C. § 227(c)(5). The plain words that begin this subsection clearly grant a private right of action in State Court to "A person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this subsection . . ." (emphasis added). Subparagraph (A) above clearly gives a citizen a private right of action "based on a violation of the regulations" to enjoin "such violations" of the regulations (emphasis added). Similarly, subparagraph (B) gives citizens a right of action for the greater of actual damages, or $500, for "each such violation" of the regulations. Subparagraph (C) gives a right for "both such actions" - i.e. both injunctive relief and damages. Finally, the last (unlettered) subparagraph above provides for up to triple damages if "the court finds that the Appellee willfully or knowingly violated the regulations prescribed under this subsection" (emphasis added). The "subsection" referred to is 47 U.S.C. § 227(c), the subsection of the TCPA passed by Congress to address privacy violations caused by live sales call solicitations by telemarketers to residential subscribers. The FCC regulations promulgated under this subsection are provided at 47 C.F.R. § 64.1200(e). The same unlettered paragraph even provides an affirmative defense if the Appellee has "established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection," again making it clear that it is the FCC's regulations for which violations are actionable, and that Congress created an affirmative defense for those regulatory violations (emphasis added). The private right of action that the TCPA provides for live sales solicitations is for violations of the regulations in the rulemaking mandated by Congress under 47 U.S.C. § 227(c) and which are codified at 47 C.F.R. § 64.1200(e), not for a specific violation of the statute's language in subsection 227(c). That this is so can be demonstrated by comparing the private right of action for live call solicitations, to the provisions in the other major TCPA subsection passed to prohibit (1) telemarketing solicitations made to residential lines using an artificial or prerecorded voice to deliver the message ("prerecorded calls"), and (2) the sending of unsolicited advertisements to any facsimile machine ("junk faxes"). See 47 U.S.C. § 227(b)(1)(B) and (C). The private right of action provision for both prerecorded call and junk fax violations is at 47 U.S.C. § 227(b)(3). It provides that "A 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 - (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violations." Id. (emphasis added). A private right of action is thus provided for violations of either the law, or, the regulations prescribed under the law. This is in contrast to the provision for a private right of action for live call violations, which only provides for an action "based on a violation of the regulations prescribed under this subsection." 47 U.S.C. § 227(c)(5)(A) (emphasis added). The reason that 47 U.S.C. § 227(c)(5)(A) limits private actions to regulatory violations is because statutory subsection 227(c)(1) required the FCC to first develop regulations after considering a variety of alternatives, such as the national do-not-call list preferred by Congress, or company-specific do-not-call lists, which the FCC ultimately adopted in its regulations. Nationwide concedes that one can bring an action under the statute if a person "has received more than one telephone call within any twelve month period . . .," but in previous motions has conveniently neglected quoting the rest of the very same sentence from the statute it quotes from, which states " . . . by or on behalf of the same entity in violation of the regulations prescribed under this subsection." 47 U.S.C. § 227(c)(5) (emphasis added). Appellant's cause of action for being called again after requesting not to be called arises from the FCC requirement for telemarketers that a "do not call request must be honored for 10 years from the time the request is made." 47 C.F.R. § 64.1200(e)(2)(vi). If this subsection of the FCC regulations is actionable, as Appellee's are apparently conceding, the other subsections of the regulations must likewise be actionable. Each subsection of the regulations is part of a carefully created regulatory scheme promulgated by the FCC, which if followed, would prevent violations. For example, a telemarketer which complies with the regulatory requirements for training personnel and maintaining a written policy is more likely not to call a person again after a DNC request is made. A final point that illustrates how FCC regulatory violations are TCPA violations is provided in an examination of the DNC policy requirements. The FCC has published an opinion letter regarding making DNC policies available. Letter from Geraldine A. Matise, Chief, Network Services Division, Common Carrier Bureau, FCC, to Janice M. Parker, Assistant Attorney General, Consumer Fraud Bureau, Chicago, IL, June 11, 1996. Appendix at 1-2. The FCC letter states that "persons who have been solicited by a business or entity have the right to obtain that entity's written do-not-call policy in order to confirm that entity's compliance with our rules. . . Additionally, we believe that failure to provide a do-not-call policy is a prohibited act under the TCPA." Appendix at 2. The requirement to provide a DNC policy is not in the TCPA law itself. It is only in the FCC regulations. The FCC letter illustrates that a violation of the FCC's regulations - here the failure to provide a do-not-call policy on demand - is a violation of the TCPA. Agency letters interpreting their own regulations are to be given deference: "provided an agency's interpretation of its own regulation does not violate the constitution or a federal statute, it must be given 'controlling weight unless it is plainly erroneous or inconsistent with the regulation'." Stinson v. United States, 508 U.S. 36, 45 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993) (internal quotations and citations omitted). One court specifically granted damages for violations of the FCC regulations. In Szefczek v. Hillsborough Beacon, 668 A.2d 1099 (N.J. Super. 1996), the court stated that it "finds that plaintiff has properly stated a claim under this section, for defendant's violation of the FCC regulations, specifically § 64.1200(e)(ii) and (iii) . . . " Id. at 266. The court later noted that "Defendant's conduct clearly violates (e)(2)(iii) of the regulations . . . [and in addition] defendant violated § 64.1200(e)(ii), entitled 'Training of personnel engaged in telephone solicitation.'" Id. at 266-267. There is simply no question that it is violations of the FCC regulations which are actionable, and for which damages can be awarded if proved. Finally, Szefczek illustrates that each violation of a subsection of the FCC's TCPA regulations is a separate actionable offense. To hold otherwise would render the regulations null. This concept has been recognized in other statutes: The regulatory scheme at issue here clearly states discrete harms. A person who complies with some of the manual requirements, for example, but fails to furnish a copy to the FAA, is subject to a fine for that one discrete violation. It would be anomalous to reward the person who totally ignores the manual requirements by concluding that he, too, is subject to but a single fine when he simultaneously violates several regulations. Other juries have found multiple violations. See, e.g., United States v. Lockheed L-188 Aircraft, 656 F.2d 390, 393 (9th Cir. 1979) ($165,000 in fines for 552 separate violations of Part 121 regulations). FAA v. Landy, 705 F.2d 624, 543 (2nd Cir. 1983). Landy, which references a requirement to furnish a manual to the FAA, is analogous to the instant dispute, in which Appellee allegedly violated the FCC requirement to furnish Appellant a DNC policy on demand.

IV. LIABILITY UNDER THE TCPA INCLUDES VIOLATIONS MADE DURING THE FIRST CALL. Telemarketing not in accordance with the TCPA or the FCC regulations is a violation, regardless of whether that particular violation is actionable for a private citizen. A Court must distinguish between violations of the TCPA, and standing to sue for TCPA violations, in order to understand why a defendant is liable for all TCPA violations made during the first solicitation call. A single telemarketing call can contain multiple violations, such as calling after 9 PM at night, or not providing proper identification, violations of 47 C.F.R. §§ 64.1200(e)(1) and (2)(iv), respectively. If these violations are made during the first call, they become actionable under the statute for statutory damages if a second call is made "within any 12-month period by or on behalf of the same entity in violation of the regulations." 47 U.S.C. 227(c)(5). Once a second call containing a violation is made within 12 months, a person has standing to sue for all violations in the first, second and any additional calls. There is no similar standing requirements requiring a second call within 12 months to enforce violations of the FCC regulations for a state attorney general, see 47 U.S.C. § 227(f)(1), or the FCC, see 47 U.S.C. § 503. This demonstrates that violations of the FCC's regulations, and having standing to sue as a private citizen for FCC violations, are two distinct concepts. Appellee has asserted that in Maryland, it is not possible for a person to make a DNC request before being called by a specific telemarketer. Appellant pointed out in his Responses leading to this appeal the obvious fact that a person can make DNC requests before ever being called by a specific telemarketer, and that this occurs regularly in states that have passed state DNC lists (see for example, Ga. Code Ann. § 46-5-27(c) and (d) (1999)), or through the Telephone Preference Service list maintained and promoted by the Direct Marketing Association ("An industry "do-not-call" database known as the Telephone Preference Service has been maintained and operated by the Direct Marketing Association for several years." H. R. Rep. No. 317, 102nd Cong., 2nd Sess. 19-20 (1991)). Whether the existing laws of these states, or Maryland at some point in the future, provides additional consumer protection under state law, by turning a single DNC request made to a state agency into a statewide DNC request binding on all telemarketers in that state, does not prevent these same pre-emptive DNC requests from being legally binding requests under the federal TCPA as well. The FCC's regulations require that when a DNC request is made, "the person or entity must record the request and place the subscriber's name and telephone number on the do-not-call list at the time the request is made." 47 C.F.R. § 64.1200(e)(2)(iii) (emphasis added). Congress expected that under a typical scenario, a person would make a DNC request during the first call, and if that request was violated by the same entity by making a second call within one year, then that failure to record the DNC request that occurred during the first call becomes actionable. Thus, the unwanted second call occurs most proximately as a result of a violation that occurred during the first call - the failure to immediately record a DNC request. Congress authorized private enforcement action after the second call is made, since a person cannot know of the first call failure until they receive the second call. Once the second call threshold is met and standing to sue is established, nothing in the statue prevents a citizen from alleging and proving violations made in the first, second or additional calls. It would be illogical to recognize a violation for purposes of establishing standing to sue, while simultaneously pretending the violation is not a violation for purposes of establishing damages. Nationwide has relied on unreported cases argued by pro se non-attorneys in other states, such as Charvat v. Colorado Prime, Inc., No. 97APG09-1277, 1998 WL 634922 (Ohio App. Sept. 17, 1998), cert. denied, 704 N.E. 2d 578, 84 Ohio St. 3d 1470 (1999). There the court ruled that the TCPA does not create liability beginning with the first call and that a plaintiff is not entitled to damages for violations prior to the second call. However, one of the three Judges on the panel dissented on precisely this issue, stating that ". . . in my opinion, the statute requires 'more than one telephone call within any 12-month period' as a predicate to bringing a private cause of action. Once that predicate is met, however, the wronged individual may recover for 'each such violation.'" Id. at *6. For this, and the reasons Appellant has argued above, the dissent's opinion is the more convincing argument.

V. WILLFUL OR KNOWING VIOLATIONS UNDER THE TCPA DO NOT REQUIRE A SHOWING OF INTENT. The TCPA provides private citizens a private right of action for treble damages "If the court finds that defendant willfully or knowingly violated the regulations." 47 U.S.C. § 227(c)(5). The Appellant need only prove a Appellee's actions were done willfully or knowingly, not both. Id. Appellant alleged Nationwide's violations were done willfully ("willful") or knowingly ("knowing") as the FCC defines and interprets these terms at 47 U.S.C. § 312(f). This code section does not define knowing, but does define willful as: The term 'willful', when used with reference to the commission or omission of an act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States. Thus, by statute there is no intent requirement for an FCC violation to be "willful." There is no restriction limiting the application of this definition to FCC licensees or common carriers. The term "knowingly"has been interpreted as "knew or should have known," Audio Enterprises, Inc., Notice of Apparent Liability for Forfeiture, 3 FCC Rcd 7233, 7237, para. 29 (1988). "Knowingly" has also been defined as equivalent to "willful." Liability of Outlet Communications, Inc. and Atlin Communications, Inc., 7 FCC Rcd 632, 633, at 13, (1992). Appellant has attached in the Appendix a copy of a July 27, 1999 opinion letter from the FCC which discusses the definitions of the terms "willfully" and "knowingly." Letter to Robert Biggerstaff from Glenn T. Reynolds, Common Carrier Bureau, FCC, July 27, 1999. Appendix at 3. Courts normally give significant deference to such letters. See e.g. Coca Cola Co. v. Atchison, Topeka, and Santa Fe R.R. Co., 608 F.2d 213 (5th Cir, 1979) (holding that agency opinion letters "although less authoritative than regulations or formal decisions, are entitled to be 'weighted carefully' and to 'great deference' if they state a reasonable conclusion." (citation omitted)). The Court should give weight to an agency interpretation of the laws it administers. Appellee has previously objected to Appellant's reliance on other sections of the Communications Act in the U.S. Code as "unrelated," despite their specific mention by the FCC in the above-mentioned letter. Appellee has relied on Kaplan v. First City Mortgage, 701 N.Y.S.2d 859 (N.Y. City Ct. 1999), where that Court quoted from Blacks's Law Dictionary for the purported ordinary definition of the term "willful" and "knowingly" in the absence of a specific definition in the TCPA. Id. at 864. Appellant points out preliminary that Appellee is relying on a case brought by a pro se non-attorney, in a decision by the Rochester City Court which was the same City Court subject to one of the few reversals in a TCPA case. Kaplan v. Democrat and Chronicle, 698 N.Y.S.2d 799 (1999)(affirming the intermediate appellate court's reversal of the Rochester City Court's decision in 679 N.Y.S.2d 881 (1998), which had dismissed the complaint by holding, erroneously, that the TCPA requires a state to opt in to the TCPA). More importantly, the Kaplan court is simply wrong. The 1934 Communications Act was amended in 1982 to provide a statutory definition of "willful" for use in the Act. The plain statutory language in 47 U.S.C. § 312(f) unambiguously states that "willful" does not include an intent requirement. The Congressional purpose behind § 312(f) is confirmed in the statutory history: "'willful' means that the licensee knew that he was doing the act in question, regardless of whether there was an intent to violate the law. . ." H.R. Conf. Rep. No. 765, 97th Cong., 2nd Sess. (1982), 1982 U.S.C.C.A.N. 2261 at 50-51. Congress stated that this statutory definition would control "for any other relevant section of the [1934 Communications] Act," and that the definitions "are consistent with the Commission's application of those terms in Midwest Radio-Television Inc., 45 F.C.C. 1137 (1963)." Id. Section 227 is just one of numerous sections of Title 47 of the U.S. Code that contain the word 'willful' or 'willfully,' and to which the definition in 47 U.S.C. § 312(f) applies. See 47 U.S.C. §§ 21, 220(e), 227, 303(m)(1), 312(f), 333, 339(a), 362, 386, 501, 502, 503, 507, 510(a), 553, 554(f)(1), 605(e)(1) & (2), 606(h), and 612. It does not matter that Congress did not specifically define 'wilfully' in section 227 or any of these other sections, since Congress already did so in section 312(f), and stated that this definition applies to other sections of the Communications Act. Similarly, the terms 'knowing' or 'knowingly' are located in numerous provisions throughout Title 47 of the U.S. Code. See 47 U.S.C. §§ 37, 202, 205(b), 223(a) and (b), 226(b)(1)(G), 227, 231(a), 303(m), 312, 325(a), 339(a), 501, 502, 503, 509(a), 510(a), 554(f)(2), 605, 606(h). Of particular note is 47 U.S.C. § 231(a), which distinguishes between prohibiting conduct done knowingly in § 231(a)(1), and provides additional penalties for conduct done intentionally in § 231(a)(2). Nationwide has also argued that the FCC's application of its established definition of 'willful' in the FCC's own TCPA enforcement action in In the Matter of Get-Aways, Inc., 15 FCC Rcd 1805 (Dec. 15, 1999) does not apply to Nationwide. Nationwide argues that because Get-Aways was first told by the FCC to stop sending unsolicited faxes, an alleged violator must be first told to stop for a violation to be deemed willful or knowing. This is wrong for several reasons. First, in the facts of this case, prior to the second call to Appellant by Nationwide on May 18, 1999, Nationwide had been requested to stop calling the Appellant during the first call to Appellant on April 22, 1999. Nationwide has admitted this fact. E. 52, 6. Second, even if Get-Aways' actions may have been more egregious than Nationwide's, Nationwide is not absolved of liability. Nationwide's argument is destroyed by the Getaways case's lengthy footnote, in which the FCC explained its authority to enforce the TCPA and addressed the interpretation of "willful": See also 47 U.S.C. § 503(b)(1). The Commission has the authority under this section of the Act to assess a forfeiture against any person who has 'willfully or repeatedly failed to comply with any of the provisions of this Act or of any rule, regulation, or order issued by the Commission under this Act' . . . A party need not have known that it was acting unlawfully to support a finding of willfulness under section 503(b) of the Act. That section requires only a showing that the party knew it was doing the acts in question. See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). Id. at n. 2 (emphasis added). For the reasons stated above, § 503(b) only requires a showing that the party knew it was doing the acts it in fact did. Note in the first highlighted phrase above that the FCC distinguishes between violations done 'willfully' with those done 'repeatedly,' through the disjunctive term "or." In this same Getaways decision, the FCC stated that 47 U.S.C. § 503(b)(5) extends its enforcement authority to non-common carriers. Id. at n. 3. Third, the FCC's authority to assess a forfeiture penalty against any person who is not a common carrier is limited to situations in which "(A) such person is first issued a citation of the violation charged; (B) is given a reasonable opportunity for a personal interview with an official of the Commission, at the field office of the Commission nearest to the person's place of resident; and (C) subsequently engages in conduct of the type described in the citation.)." Id. at n. 2. These conditions are not required of citizens who file private TCPA actions pursuant to 47 U.S.C. § 227(c)(5). Appellant points out that uniform enforcement of the TCPA would be subverted if state courts hearing TCPA cases imposed different definitions from the FCC's definitions. In other words, 'willful' conduct in an FCC enforcement action might not be 'willful' if the same violations were prosecuted by a citizen in a state court. This is contrary to the Supreme Court's statement that "Federal laws 'should be the same everywhere' and 'their construction should be uniform.'" U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 812 (1995) (citation omitted). A final point is that the treble damages allowed by the TCPA for willful or knowing violations should be decided by a jury. Recently, in Admiral Mortgage, Inc. v. Cooper, 357 Md. 533 (2000), the Court of Appeals held that " discretionary additional damages is for the trier of fact to determine." Id. at 553. Appellant's request for treble damages for the Appellee's violations being willful or knowing is supported by the definition of these terms in the Communications Act, in FCC opinions and decisions interpreting those terms, and by the requirement for consistent enforcement of federal law.

CONCLUSION The Court of Special Appeals should reverse the Circuit Court's granting of the Appellee's Motion for Summary Judgment. Appellant also requests that this Court decide and rule on the following TCPA issues, all of which are cases of first impression in Maryland, and thus have importance beyond the instant dispute: (1) Whether the TCPA provides a private right of action for violations of the FCC regulations; (2) Whether liability under the TCPA includes violations made during the first solicitation call; and (3) Whether willful or knowing violations of the TCPA require a showing of intent. Respectfully submitted, Michael C. Worsham, Esq., Appellant 1916 Cosner Road Forest Hill, Maryland 21050 (410) 557-6192 August 30, 2000   This Appellant's Brief was [originally] printed in Times New Roman in 13 point font.

CERTIFICATE OF SERVICE I CERTIFY that on the 30th day of August, 2000, two copies of the Appellant's Brief, and the Record Extract, were mailed, first class postage prepaid, to: Harry Rifkin, Esq., Hodes, Ulman, Pessin & Katz, P.A., attorneys for Defendant Nationwide Mutual Insurance Company, 901 Dulaney Valley Road, Suite 400, Towson, Maryland, 21204, 410-938-8800. Michael C. Worsham, Esq., Plaintiff, Pro Se

TEXT OF STATUTES, REGULATIONS AND DEFINITIONS   Ga. Code Ann. § 46-5-27(c) and (d) (1999) Md. Code. Ann. Insurance Article § 1-101(c) and (i) (1999) 47 U.S.C. § 21 47 U.S.C. § 37 47 U.S.C. § 202 47 U.S.C. § 205(b) 47 U.S.C. § 217 47 U.S.C. § 220(e) 47 U.S.C. § 223(a) and (b) 47 U.S.C. § 226(b)(1)(G) 47 U.S.C. § 227 47 U.S.C. § 231(a) 47 U.S.C. § 303(m) 47 U.S.C. § 312(f) 47 U.S.C. § 325(a) 47 U.S.C. § 333 47 U.S.C. § 339(a) 47 U.S.C. § 362 47 U.S.C. § 386 47 U.S.C. § 501 47 U.S.C. § 502 47 U.S.C. § 503(b) 47 U.S.C. § 507 47 U.S.C. § 509(a) 47 U.S.C. § 510(a) 47 U.S.C. § 553 47 U.S.C. § 554(f)(1) and (2) 47 U.S.C. § 605(e)(1) and (2) 47 U.S.C. § 606(h) 47 U.S.C. § 612 H.R. Conf. Rep. No. 765, 97th Cong., 2nd Sess. (1982), 1982 U.S.C.C.A.N. 2261 at 50-51 H. R. Rep. No. 317, 102nd Cong., 2nd Sess. 19-20 (1991) 47 C.F.R. § 64.1200 Rule 2-501(e) subscriber, user - definitions from: Telecommunications: Glossary of Telecommunication Terms.

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