UNITED STATES CODE SERVICE
*** THIS SECTION IS CURRENT THROUGH 106-263, APPROVED 8/18/00 ***
*** WITH THE EXCEPTION OF 106-260 AND 106-261 ***
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
COMMON CARRIER REGULATION
47 USCS § 227 (2000)
§ 227. Restrictions on use of telephone equipment
(a) Definitions. As used in this section--
(1) The term "automatic telephone dialing system" means equipment which has the capacity--
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
(2) The term "telephone facsimile machine" means equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.
(3) The term "telephone solicitation" means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.
(4) The term "unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.
(b) Restrictions on use of automated telephone equipment.
(1) Prohibitions. It shall be unlawful for any person within the United States--
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice--
(i) to any emergency telephone line (including any "911" line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B);
(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine; or
(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.
(2) Regulations; exemptions and other provisions. The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission--
(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent; (B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe--
(i) calls that are not made for a commercial purpose; and
(ii) such classes or categories of calls made for commercial purposes as the Commission determines--
(I) will not adversely affect the privacy rights that this section is intended to protect; and
(II) do not include the transmission of any unsolicited advertisement; and
(C) may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.
(3) Private right of action. 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 violation,
(B) 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, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or 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.
(c) Protection of subscriber privacy rights.
(1) Rulemaking proceeding required. Within 120 days after the date of enactment of this section [Dec. 20, 1991], the Commission shall initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers' privacy rights to avoid receiving telephone solicitations to which they object. The proceeding shall--
(A) compare and evaluate alternative methods and procedures (including the use of electronic databases, telephone network technologies, special directory markings, industry-based or company-specific 'do not call' systems, and any other alternatives, individually or in combination) for their effectiveness in protecting such privacy rights, and in terms of their cost and other advantages and disadvantages;
(B) evaluate the categories of public and private entities that would have the capacity to establish and administer such methods and procedures;
(C) consider whether different methods and procedures may apply for local telephone solicitations, such as local telephone solicitations of small businesses or holders of second class mail permits;
(D) consider whether there is a need for additional Commission authority to further restrict telephone solicitations, including those calls exempted under subsection (a)(3) of this section, and, if such a finding is made and supported by the record, propose specific restrictions to the Congress; and
(E) develop proposed regulations to implement the methods and procedures that the Commission determines are most effective and efficient to accomplish the purposes of this section.
(2) Regulations. Not later than 9 months after the date of enactment of this section [Dec. 20, 1991], the Commission shall conclude the rulemaking proceeding initiated under paragraph (1) and shall prescribe regulations to implement methods and procedures for protecting the privacy rights described in such paragraph in an efficient, effective, and economic manner and without the imposition of any additional charge to telephone subscribers.
(3) Use of database permitted. The regulations required by paragraph (2) may require the establishment and operation of a single national database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations, and to make that compiled list and parts thereof available for purchase. If the Commission determines to require such a database, such regulations shall--
(A) specify a method by which the Commission will select an entity to administer such database;
(B) require each common carrier providing telephone exchange service, in accordance with regulations prescribed by the Commission, to inform subscribers for telephone exchange service of the opportunity to provide notification, in accordance with regulations established under this paragraph, that such subscriber objects to receiving telephone solicitations;
(C) specify the methods by which each telephone subscriber shall be informed, by the common carrier that provides local exchange service to that subscriber, of (i) the subscriber's right to give or revoke a notification of an objection under subparagraph (A), and (ii) the methods by which such right may be exercised by the subscriber;
(D) specify the methods by which such objections shall be collected and added to the database;
(E) prohibit any residential subscriber from being charged for giving or revoking such notification or for being included in a database compiled under this section;
(F) prohibit any person from making or transmitting a telephone solicitation to the telephone number of any subscriber included in such database;
(G) specify (i) the methods by which any person desiring to make or transmit telephone solicitations will obtain access to the database, by area code or local exchange prefix, as required to avoid calling the telephone numbers of subscribers included in such database; and (ii) the costs to be recovered from such persons;
(H) specify the methods for recovering, from persons accessing such database, the costs involved in identifying, collecting, updating, disseminating, and selling, and other activities relating to, the operations of the database that are incurred by the entities carrying out those activities;
(I) specify the frequency with which such database will be updated and specify the method by which such updating will take effect for purposes of compliance with the regulations prescribed under this subsection;
(J) be designed to enable States to use the database mechanism selected by the Commission for purposes of administering or enforcing State law;
(K) prohibit the use of such database for any purpose other than compliance with the requirements of this section and any such State law and specify methods for protection of the privacy rights of persons whose numbers are included in such database; and
(L) require each common carrier providing services to any person for the purpose of making telephone solicitations to notify such person of the requirements of this section and the regulations thereunder.
(4) Considerations required for use of database method. If the Commission determines to require the database mechanism described in paragraph (3), the Commission shall--
(A) in developing procedures for gaining access to the database, consider the different needs of telemarketers conducting business on a national, regional, State, or local level;
(B) develop a fee schedule or price structure for recouping the cost of such database that recognizes such differences and--
(i) reflect the relative costs of providing a national, regional, State, or local list of phone numbers of subscribers who object to receiving telephone solicitations;
(ii) reflect the relative costs of providing such lists on paper or electronic media; and
(iii) not place an unreasonable financial burden on small businesses; and
(C) consider (i) whether the needs of telemarketers operating on a local basis could be met through special markings of area white pages directories, and (ii) if such directories are needed as an adjunct to database lists prepared by area code and local exchange prefix.
(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 defendant 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 defendant 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.
(6) Relation to subsection (b). The provisions of this subsection shall not be construed to permit a communication prohibited by subsection (b).
(d) Technical and procedural standards.
(1) Prohibition. It shall be unlawful for any person within the United States--
(A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any automatic telephone dialing system, that does not comply with the technical and procedural standards prescribed under this subsection, or to use any telephone facsimile machine or automatic telephone dialing system in a manner that does not comply with such standards; or
(B) to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.
(2) Telephone facsimile machines. The Commission shall revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such machine which is manufactured after one year after the date of enactment of this section clearly marks, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the message, and the telephone number of the sending machine or of such business, other entity, or individual.
(3) Artificial or prerecorded voice systems. The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that--
(A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual; and
(B) any such system will automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls.
(e) Effect on State law.
(1) State law not preempted. Except for the standards prescribed under subsection (d) and subject to paragraph (2) of this subsection, nothing in this section or in the regulations prescribed under this section shall preempt any State law that imposes more restrictive intrastate requirements or regulations on, or which prohibits--
(A) the use of telephone facsimile machines or other electronic devices to send unsolicited advertisements;
(B) the use of automatic telephone dialing systems;
(C) the use of artificial or prerecorded voice messages; or
(D) the making of telephone solicitations.
(2) State use of databases. If, pursuant to subsection (c)(3), the Commission requires the establishment of a single national database of telephone numbers of subscribers who object to receiving telephone solicitations, a State or local authority may not, in its regulation of telephone solicitations, require the use of any database, list, or listing system that does not include the part of such single national database that relates to such State.
(f) Actions by States.
(1) Authority of States. Whenever the attorney general of a State, or an official or agency designated by a State, has reason to believe that any person has engaged or is engaging in a pattern or practice of telephone calls or other transmissions to residents of that State in violation of this section or the regulations prescribed under this section, the State may bring a civil action on behalf of its residents to enjoin such calls, an action to recover for actual monetary loss or receive $ 500 in damages for each violation, or both such actions. If the court finds the defendant willfully or knowingly violated such regulations, 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 the preceding sentence.
(2) Exclusive jurisdiction of Federal courts. The district courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia shall have exclusive jurisdiction over all civil actions brought under this subsection. Upon proper application, such courts shall also have jurisdiction to issue writs of mandamus, or orders affording like relief, commanding the defendant to comply with the provisions of this section or regulations prescribed under this section, including the requirement that the defendant take such action as is necessary to remove the danger of such violation. Upon a proper showing, a permanent or temporary injunction or restraining order shall be granted without bond.
(3) Rights of Commission. The State shall serve prior written notice of any such civil action upon the Commission and provide the Commission with a copy of its complaint, except in any case where such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Commission shall have the right (A) to intervene in the action, (B) upon so intervening, to be heard on all matters arising therein, and (C) to file petitions for appeal.
(4) Venue; service of process. Any civil action brought under this subsection in a district court of the United States may be brought in the district wherein the defendant is found or is an inhabitant or transacts business or wherein the violation occurred or is occurring, and process in such cases may be served in any district in which the defendant is an inhabitant or where the defendant may be found.
(5) Investigatory powers. For purposes of bringing any civil action under this subsection, nothing in this section shall prevent the attorney general of a State, or an official or agency designated by a State, from exercising the powers conferred on the attorney general or such official by the laws of such State to conduct investigations or to administer oaths or affirmations or to compel the attendance of witnesses or the production of documentary and other evidence.
(6) Effect on State court proceedings. Nothing contained in this subsection shall be construed to prohibit an authorized State official from proceeding in State court on the basis of an alleged violation of any general civil or criminal statute of such State.
(7) Limitation. Whenever the Commission has instituted a civil action for violation of regulations prescribed under this section, no State may, during the pendency of such action instituted by the Commission, subsequently institute a civil action against any defendant named in the Commission's complaint for any violation as alleged in the Commission's complaint.
(8) Definition. As used in this subsection, the term "attorney general" means the chief legal officer of a State.
(June 19, 1934, ch 652, Title II, § 227, as added Dec. 20, 1991, P.L. 102-243, § 3, 105 Stat. 2395; Oct. 28, 1992, P.L. 102-556, Title IV, § 402, 106 Stat. 4194; Oct. 25, 1994, P.L. 103-414, Title III, § 303(a)(11), (12), 108 Stat. 4294.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
1992.Act Oct. 28, 1992, in subsec. (b)(2), in subpara. (A), deleted "and" following the semicolon, in subpara. (B)(ii)(II), substituted "; and" for the concluding period, and added subpara. (C). 1994. Act Oct. 25, 1994, in subsec. (b)(2)(C), substituted "paragraph" for "paragraphs"; and, in subsec. (e)(2), substituted "database" for "datebase".
Congressional findings. Act Dec. 20, 1991, P.L. 102-243, § 2, 105 Stat. 2394, provides:
"The Congress finds that:
"(1) The use of the telephone to market goods and services to the home and other businesses is now pervasive due to the increased use of cost-effective telemarketing techniques.
"(2) Over 30,000 businesses actively telemarket goods and services to business and residential customers.
"(3) More than 300,000 solicitors call more than 18,000,000 Americans every day.
"(4) Total United States sales generated through telemarketing amounted to $ 435,000,000,000 in 1990, a more than four-fold increase since 1984.
"(5) Unrestricted telemarketing, however, can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety.
"(6) Many consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers.
"(7) Over half the States now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, Federal law is needed to control residential telemarketing practices.
"(8) The Constitution does not prohibit restrictions on commercial telemarketing solicitations.
"(9) Individuals' privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices.
"(10) Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.
"(11) Technologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer.
"(12) Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.
"(13) While the evidence presented to the Congress indicates that automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call, the Federal Communications Commission should have the flexibility to design different rules for those types of automated or prerecorded calls that it finds are not considered a nuisance or invasion of privacy, or for noncommercial calls, consistent with the free speech protections embodied in the First Amendment of the Constitution.
"(14) Businesses also have complained to the Congress and the Federal Communications Commission that automated or prerecorded telephone calls are a nuisance, are an invasion of privacy, and interfere with interstate commerce.
"(15) The Federal Communications Commission should consider adopting reasonable restrictions on automated or prerecorded calls to businesses as well as to the home, consistent with the constitutional protections of free speech.".
Deadline for regulations; effective date. Act Dec. 20, 1991, P.L. 102-243, § 3(c), 105 Stat. 2402; Oct. 28, 1992, P.L. 102-556, Title I, § 102, 106 Stat. 4186, provides:
"(1) Regulations. The Federal Communications Commission shall prescribe regulations to implement the amendments made by this section [adding this section and amending 47 USCS § 152(b)] not later than 9 months after the date of enactment of this Act.
"(2) Effective date. The requirements of section 227 of the Communications Act of 1934 [this section] (as added by this section ), other than the authority to prescribe regulations, shall take effect one year after the date of enactment of this Act.".
NOTES: CODE OF FEDERAL REGULATIONS
Federal Communications Commission--Connection of terminal equipment to the telephone network, 47 CFR Part 68.
47 CFR Part 52
This section is referred to in 47 USCS § 152.
RESEARCH GUIDE Federal Procedure:
31 Fed Proc L Ed, Telecommunications §§ 72:974, 1010, 1028.
Validity, construction, and application of state statute or law pertaining to telephone solicitation. 44 ALR5th 619.
INTERPRETIVE NOTES AND DECISIONS
Telephone Consumer Protection Act of 1991 (47 USCS § 227) which makes it unlawful to send unsolicited faxes containing advertisements does not violate First Amendment and is reasonable means of preventing shifting of advertising costs to consumers. Destination Ventures v FCC (1995, CA9 Or) 46 F3d 54, 95 CDOS 807, 95 Daily Journal DAR 1463, 23 Media L R 1446.
Provision of Telephone Consumer Protection Act of 1991 (47 USCS § 227) banning automated, prerecorded calls to residences is content-neutral and narrowly tailored to advance legitimate government interest and leaves open ample alternative channels of communication, and therefore provision does not violate First Amendment; additionally, district court had jurisdiction to hear suit challenging constitutionality of 47 USCS § 227, since suit did not challenge any related FCC regulations. Moser v FCC (1995, CA9 Or) 46 F3d 970, 95 CDOS 925.
Telephone Consumer Protection Act (47 USCS § 227) does not preempt similar state law regulating use of automatic telephone dialing-announcing devices which prohibits use of such devices by candidate for public office. Van Bergen v Minnesota (1995, CA8 Minn) 59 F3d 1541.
States have been given, subject to their consent, exclusive subject matter jurisdiction over private actions authorized by Telephone Consumer Protection Act of 1991 (47 USCS § 227), and fact that such private actions may be permitted in some states and prohibited in others does not render Act violative of equal protection component of Fifth Amendment's due process clause; further, interpreting statute as creating exclusive state jurisdiction does not infringe Tenth Amendment rights of states to govern without interference from federal government. International Science & Tech. Inst. v Inacom Communs. (1997, CA4 Va) 106 F3d 1146.
State courts have exclusive subject matter jurisdiction over private actions brought under Telephone Consumer Protection Act of 1991 (47 USCS § 227). Chair King v Houston Cellular Corp. (1997, CA5 Tex) 131 F3d 507.
State courts have exclusive subject matter jurisdiction over private actions under Telephone Consumer Protection Act (47 USCS § 227). Nicholson v Hooters, Inc. (1998, CA11 Ga) 136 F3d 1287, 11 FLW Fed C 1112.
Congress clearly intended to create private cause of action under Telephone Consumer Protection Act (47 USCS § 227), and statutory analysis indicates that Congress intended to refer private litigants under Act to state court and to preclude federal question jurisdiction over such consumer suits. Erienet, Inc. v Velocity Net (1998, CA3 Pa) 156 F3d 513ec.
State courts have exclusive jurisdiction over cause of action created by Telephone Consumer Protection Act of 1991 (47 USCS § 227), since statutory analysis indicates that Congress intended to confer exclusive state court jurisdiction over private rights created by statute. Foxhall Realty Law Offices v Telecommunications Premium Servs. (1998, CA2 NY) 156 F3d 432.
Telephone Consumer Protection Act, 47 USCS § 227(b)(1)(B), which prohibits using artificial or prerecorded voice to deliver some commercial messages to residential telephone lines without consent of called party, is unconstitutional, because Congress has not met its burden of showing reasonable fit between selective, categorical ban on one form of commercial solicitation and goal of enhancing residential privacy. Moser v FCC (1993, DC Or) 826 F Supp 360.
Fax advertisers' challenge to constitutionality of 47 USCS § 227(b)(1)(C) fails, where advertisers sought to enjoin enforcement of statute forbidding transmission of unsolicited advertisements via telephone facsimile machines (fax), 47 USCS § 227(b)(1)(C), because fax advertisement is commercial speech, government has legitimate purpose of preventing unfair cost-shifting to recipients of unsolicited advertisements, and ban on all unsolicited advertisements is reasonably crafted to fit purpose and therefore does not infringe impermissibly on advertisers' First Amendment rights. Destination Ventures v FCC (1994, DC Or) 844 F Supp 632, 22 Media L R 1171.
Former employee of appellate services corporation did not violate 47 USCS § 227(b) proscription against use of telephone facsimile machine (fax) to send "unsolicited advertisement," where employee and new business partner twice faxed unsolicited messages seeking to hire away corporation's employees, because messages did not fall within § 227(a)(4) definition of "material advertising commercial availability or quality of any property, goods, or services"--Congress did not prohibit fax transmissions of all unsolicited information or communications, and there is some question whether it could do so constitutionally. Lutz Appellate Servs. v Curry (1994, ED Pa) 859 F Supp 180.
Remedy provided in 47 USCS § 227 is designed to provide adequate incentive for individual plaintiff to bring suit on his own behalf. Forman v Data Transfer (1995, ED Pa) 164 FRD 400.
Corporation's action alleging violation of 47 USCS § 227 is not remanded to state court, because language of § 227(b)(3) providing for private right of action in state court was not meant to repeal federal question jurisdiction under 28 USCS § 1331; rather, state-court jurisdiction is concurrent, not exclusive, so court has federal question jurisdiction over this action which is based on violation of federal law. Kenro, Inc. v Fax Daily (1995, SD Ind) 904 F Supp 912.
Statutory claim brought by recipients of unwanted advertising via telephone facsimile (fax) will not be dismissed, because ban on unsolicited fax advertisements set forth at 47 USCS § 227(b)(1)(C) is narrowly tailored to government's asserted interest in protecting consumers from unfair shifting of advertising costs and from interruption of their use of their own fax machines, and does not violate First Amendment guarantee of commercial free speech. Kenro, Inc. v Fax Daily (1997, SD Ind) 962 F Supp 1162, 25 Media L R 1908.
District Court did not have subject-matter jurisdiction over action brought under 47 USCS § 227, where alleged recipient of unsolicited facsimile advertisement brought putative class action in federal court against telecommunications company for statutory violation, because statutory language explicitly conferred permissive jurisdiction over such actions only in state courts. Foxhall Realty Law Offices v Telecommunications Premium Servs. (1997, SD NY) 975 F Supp 329, 26 Media L R 1092. Complaint filed by individual alleging that defendants had violated Telephone Consumer Protection Act (47 USCS § 227) by sending unsolicited facsimile advertisements to plaintiff was properly dismissed for lack of subject matter jurisdiction, since Act did not create private right of action in federal court. Murphey v Lanier (2000, CA9 Cal) 204 F3d 911, 2000 CDOS 1439, 2000 Daily Journal DAR 2027.