In Giovanniello v. ALM Media, LLC, — F.3d —-, 2011 WL 4907382 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that the TCPA borrows state-law statutes of limitations because the TCPA permits causes of action only where otherwise permitted by state law.
In sum, while a TCPA diversity action is somewhat unusual in that the cause of action is created by federal rather than state law, that federal law authorizes TCPA claims only as “otherwise permitted” by state law. This indicates that “Congress intended to give states a fair measure of control over solving the problems that the TCPA addresses.” Holster v. Gatco, Inc., 618 F.3d at 218. Such control encompasses not only the general authority to recognize particular causes of action, but also the specific authority to determine the time period within which such actions will be recognized. Accordingly, we construe the “otherwise permitted” provision of 47 U.S.C. § 227(b)(3) to signal Congress’s intent to allow state statutes of limitations to control a TCPA filing. If a claim for the transmission of an unsolicited commercial fax is no longer “permitted” by a state statute of limitations, it cannot be maintained under the TCPA, notwithstanding the federal catch-all statute of limitations provided in 28 U.S.C. § 1658(a).