Full opinion text
OPINION KEM THOMPSON FROST, Justice. We overrule the motions for rehearing filed by appellants and by appellee GTE Mobilnet of Houston, Inc. We withdraw the opinion issued in this case on January 29, 2004, and we issue the following opinion in its place. This is a complicated case in which we address several interesting and multi-fac-eted issues under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Appellants, plaintiffs below, challenge the trial court’s judgment dismissing their private damage claims under the TCPA and their common-law claims and granting ap-pellees/defendants’ no-evidence and traditional motions for summary judgment. We conclude that the trial court correctly granted summary judgment as to appellants’ common-law claims, all of their claims against appellee Chick-Fil-A, Inc. (“Chick-Fil-A”), and the TCPA claims of appellants The Chair King, Inc., Chair King, S.A., Inc., M.E. Ford and Associates, Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., and Pope Escrow Company. However, we reverse the trial court’s judgment as to the TCPA claims of appellants Jerome Kosoy, M.D., Beautique, Inc., Discovery Services of Texas, Inc., and Jeffrey K. Musker, D.C. against appellee GTE Mobilnet of Houston, Inc. (“GTE Mobilnet”) and remand these claims for further proceedings consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND Appellants The Chair King, Inc., Chair King, S.A., Inc., Jerome Kosoy, M.D., M.E. Ford and Associates, Beautique, Inc., Discovery Services of Texas, Inc., Vantage Shoe Warehouse, Inc., Counselor Systems, Inc., Pope and Booth, P.C., Jeffrey K. Musker, D.C., and Pope Escrow Company (collectively referred to herein as the “Recipients”) allege they are individuals or entities engaged in commercial, professional, or personal matters in and around various major metropolitan areas of Texas, including Houston, Dallas, San Antonio, and Austin. The Recipients assert that, from as early as 1992, they have received numerous unsolicited fax advertisements on their fax machines. Some of the fax communications in question were disseminated by AdverFax, a now defunct company that was formerly in the business of sending out fax advertisements for other businesses. Adver-Fax targeted recipients whom it perceived would be likely to buy its clients’ products or services and then sent advertisements or coupons via fax to these targets. To facilitate its operations, Adver-Fax divided Houston into zones, each of which contained facsimile numbers for that geographic area. AdverFax maintained a database containing fax numbers, sorted according to zone, which enabled AdverFax’s customers to send faxed advertisements to all of the fax numbers in any chosen geographic zone. With its customers’ authorization, AdverFax sent fax advertisements to the numbers in its database pertaining to the requested zones. The summary-judgment evidence shows that Adverfax sent out large numbers of faxed advertisements for its customers’ products and services. In 1995, the Recipients filed suit against GTE Mobilnet in the United States District Court for the Sourthern District of Texas (the “Federal Suit”). Although the Recipients named several ■ defendants (including GTE Mobilnet) in that suit, Chick-Fil-A was not among them. The United States Court of Appeals for the Fifth Circuit ultimately determined that the federal court lacked subject-matter jurisdiction. See Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507, 509 (5th Cir.1997). The Federal Suit was then dismissed. The Recipients filed this case in Harris County District Court in 1995. On March 11, 1998, the Recipients added GTE Mobil-net and Chick-Fil-A (collectively referred to herein as the “Advertisers”) to this case, suing Chick-Fil-A for the first time. The Recipients alleged that numerous fax-advertising companies (including AdverFax) as well as the Advertisers and many other businesses who also retained these fax-advertising companies had sent unsolicited fax advertisements to the Recipients. The Recipients asserted the following claims: (1) a private damage claim under the TCPA; (2) negligence; (3) negligence per se; (4) invasion of privacy; (5) trespass to chattels; and (6) gross negligence. The Recipients also alleged that the defendant advertisers had engaged in a conspiracy with their respective fax-advertising companies to send unsolicited fax advertisements. The defendants filed a joint motion for summary judgment asserting the following grounds: (1) The damages claims under the TCPA are barred because, at the time the faxes in question were sent, Texas had not authorized the filing of private damage claims under the TCPA in Texas courts; (2) The TCPA does not apply to any faxes sent solely within Texas; (3) If the TCPA does apply to intrastate faxes, then Congress lacked the power to enact the TCPA under the Commerce Clause of the United States Constitution; (4) The TCPA’s minimum damages provision violates due process under the United States and Texas Constitutions because it is grossly disproportionate to any damage suffered by the Recipients; (5) The TCPA violates the defendants’ free-speech rights under the United States and Texas Constitutions; (6) The TCPA violates the Equal Protection Clause of the United States Constitution because it unfairly discriminates against fax advertisements based on the content of their protected speech; (7) The receipt of unsolicited fax advertisements does not constitute an invasion of privacy; (8) The Recipients do not possess any right to privacy; (9) Receipt of unsolicited fax advertisements does not constitute a trespass to chattels; (10) The conduct about which the Recipients complain, as a matter of law, does not constitute negligence, gross negligence or negligence per se; and (11) Because all of the Recipients’ underlying claims fail, as a matter of law, their conspiracy claims also fail. After the trial court denied this joint motion, GTE Mobilnet filed a separate motion for summary judgment and a supplemental motion asserting the following grounds: (1) GTE Mobilnet allegedly did not send the faxes in question to the Recipients; rather they were sent by independently owned and operated agents; (2) Jerome Kosoy, M.D. is a GTE Mo-bilnet customer so his consent to receive fax advertising from GTE Mobilnet is allegedly implied; (3) The Recipients’ claims are barred by the statute of limitations; (4) There is no evidence GTE Mobilnet sent unsolicited fax advertisements to any of the Recipients; and (5) There is no evidence to support the essential elements of the Recipients’ common-law claims. Chick-Fil-A also filed an individual motion for summary judgment and asserted the following grounds: (1) The two-year statute of limitations under section 16.003 of the Texas Civil Practice and Remedies Code bars all of the Recipients’ claims; (2) Chick-Fil-A did not use its fax machines to send faxes to the Recipients and there was no agency relationship between Chick-Fil-A and the fax-advertising companies that sent faxes to the Recipients; (3) There is no evidence to support the essential elements of the Recipients’ common-law claims; and (4) Chick-Fil-A is not liable for the actions of its independent franchisees. The Recipients filed responses to both the joint motion for summary judgment and the individual motions, and they also filed their own motion for a partial summary judgment relating to certain aspects of their TCPA claims against certain defendants, including the Advertisers. After granting summary-judgment motions dismissing the Recipients’ claims against certain defendants, the trial court reconsidered its ruling on the joint motion for summary judgment, granted the joint motion, and also granted the individual motions for summary judgment of the remaining defendants, including the Advertisers. The trial court also denied the Recipients’ motion for partial summary judgment. Both in the trial court and on appeal, the Recipients settled with various defendants, so that only GTE Mobilnet and Chick-Fil-A remain as defendants/ap-pellees in this case. On appeal, the Recipients assert the trial court erred by granting the joint motion for summary judgment and the individual motions of GTE Mobilnet and Chick-Fil-A as well as by denying the Recipients’ motion for partial summary judgment. II. STANDARDS OF REVIEW In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant’s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houton [14th Dist.] 2000, pet. denied). If the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id. In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Id. We take as true all evidence favorable to the non-movant, and we make all reasonable inferences therefrom in the non-movant’s favor. Id. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917. Because the trial court did not specify the grounds for its ruling, we will affirm if any of the grounds advanced in the motion has merit. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). We review the trial court’s interpretation of applicable statutes de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing federal statutes, we look first at the language of the entire statute to determine if the language in question has a plain and unambiguous meaning regarding the issue before us. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). The inquiry stops if the statutory language is unambiguous and “the statutory scheme is coherent and consistent.” Id. (quotations omitted). If the relevant statutory language is ambiguous and if no agency responsible for implementing the statute has interpreted the language, then we seek guidance in the statutory structure, relevant legislative history, and congressional purposes in enacting the TCPA. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 737, 105 S.Ct. 1598, 1603, 84 L.Ed.2d 643 (1985); Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). We read the words of a statute in their context, taking note of their place in the overall statutory scheme. Food and Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 1301, 146 L.Ed.2d 121 (2000) (citations and quotations omitted). In doing so, we must interpret the statute as a “symmetrical and coherent regulatory scheme” and, if possible, fit all parts into a “harmonious whole.” Id. We must construe the language of the TCPA, if possible, so that no word is rendered meaningless or insignificant. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 449, 151 L.Ed.2d 339 (2001). III. ANALYSIS A. Are the Recipients’ TCPA damage claims barred because, at the time the faxes in question were sent, Texas had not authorized the filing of damage actions under the TCPA in Texas courts? One of the Advertisers’ grounds for summary judgment was that the Reeipi-ents’ private damage claims under the TCPA are barred because the TCPA requires a state to authorize damage actions under the TCPA before these claims may be asserted. As noted above, Texas did not specifically authorize the filing of these private damage claims in its courts until September 1, 1999, and the statute containing this authorization does not apply to the fax advertisements in question because they were sent before September 1, 1999. See Act of May 26, 1999, 76th Leg., R.S., ch. 635, §§ 1-3, 1999 Tex. Gen. Laws 3203 (codified at Tex. Bus. & Comm.Code § 35.47(c)-(g)). To frame our statutory analysis relating to this legal issue and the other TCPA issues before the court, we begin with an examination of the relevant language and the possible interpretations of this federal statute. 1. The Statutory Language and the Possible Interpretations The first summary-judgment ground we must consider turns on the interpretation of the following statutory language, upon which the Recipients base their TCPA damage claim: 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. 47 U.S.C. § 227(b)(3) (emphasis added). In addition to providing this private right of action under section 227(b)(3), the TCPA also authorizes any state attorney general to bring civil actions on behalf of its state’s residents to obtain an injunction against such unsolicited fax advertisements and to recover the same monetary damages that may be recovered under section 227(b)(3). See 47 U.S.C. §§ 227(b)(3) & (f)(1). The TCPA provides that federal district courts have exclusive jurisdiction over actions brought by state attorneys general. 47 U.S.C. § 227(f)(2). Finally, the TCPA also authorizes the Federal Communications Commission (“FCC”) to intervene as of right in any state attorney general’s action. See 47 U.S.C. § 227(f)(3). Federal courts of appeals uniformly have determined that private TCPA damage claims may be brought only in state courts. See Murphey v. Lanier, 204 F.3d 911, 913-15 (9th Cir.2000) (agreeing with five other circuit courts of appeals that federal courts have no jurisdiction over private damage claims under the TCPA). The critical language in section 227(b)(3) is “if otherwise permitted by the laws or rules of court of a State.” At least three different interpretations of this language have developed regarding the circumstances under which a claimant may bring a TCPA damage claim in state court. See Robert R. Biggerstaff, State Courts and the Telephone Consumer Protection Act of 1991: Must States Opt In? Can States Opt Out? 33 Conn. L.Rev. 407, 412-13 (2001). These three interpretations, which we refer to as “opt-in,” “opt-out,” and “acknowledgment,” each produce different results when applied to the Recipients’ TCPA claims. The “Opt-in” Interpretation Under the “opt-in” interpretation espoused by the Advertisers, private TCPA damage claims cannot be brought in a state’s courts until that state’s legislature enacts legislation or that state’s highest court promulgates court rules that specifically permit these claims to be filed in that state’s courts. See Autoflex Leasing, Inc. v. Mfrs. Auto Leasing, 16 S.W.3d 815, 817 (Tex.App. — Fort Worth 2000, pet. denied) (holding that, under plain meaning of 47 U.S.C. § 227(b)(3), TCPA damage claims cannot be asserted in a state’s court until these claims are expressly permitted by state legislation or state court rule and that such claims may not be brought in Texas unless the alleged violation occurred on or after September 1, 1999, when a statute took effect authorizing these claims). This view has been adopted by the only Texas court to address the issue. However, courts from nine other states have rejected the opt-in interpretation. See Lary v. Flasch Bus. Consulting, No. 2020803, — So.2d—, ——, 2003 WL 22463948, at *2-⅜5 (Ala.Civ.App. Oct.31, 2003) (holding that a state’s legislative or judicial authorities need not “opt in” for the state’s courts to entertain private damage claims under the TCPA); Condon v. Office Depot, Inc., 855 So.2d 644, 645-48 (Fla.Dist.Ct.App.2003) (same); Kaufman v. ACS Sys., Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296, 306-12 (2003) (holding TCPA provides for private damage claims in state court unless prohibited by the state); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 908-10 (Mo. 2002) (holding state enabling legislation is not required to assert private damage claims under the TCPA); Zelma v. Market U.S.A., 343 N.J.Super. 356, 778 A.2d 591, 593-98 (2001) (holding no affirmative act by legislature or highest state court was necessary for trial court to entertain private damage claims under the TCPA); Worsham v. Nationwide Ins. Co., 138 Md. App. 487, 772 A.2d 868, 871-74 (2001) (stating, in context of damage action under 47 U.S.C. § 227(c)(5), which has same “if otherwise permitted” language, that state courts have jurisdiction over private TCPA claims in the absence of a state statute declining to exercise jurisdiction over TCPA claims); Aronson v. Fax.com, Inc., 51 Pa. D. & C. 4th 421, 423-36 (Ct.Com.Pl. 2001) (adopting “opt-out” rather than “opt-in’’ construction of 47 U.S.C. § 227(b)(3)); Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468, 470-71 (2000) (same as Aronson); Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 710 N.Y.S.2d 368, 370-72 (N.Y.App.Div.2000); see also International Science & Tech. Inst. v. Inacom Communications, Inc., 106 F.3d 1146, 1156-58 (4th Cir.1997) (same as Aronson in context of finding no subject-matter jurisdiction in federal court). If states do not need to affirmatively enact a statute or promulgate a court rule allowing private TCPA damage actions for claimants to file suit in state court, there are at least two other possible interpretations. The “Opt-Out” Interpretation Under a second interpretation, states may have the ability to “opt out” by passing a statute declining to entertain TCPA damage actions in that state’s courts. See International Science & Tech. Inst., 106 F.3d at 1156-58; Hooters of Augusta, Inc., 537 S.E.2d at 470-71. This interpretation points to the concern about a potential flood of private TCPA actions in state courts, burdening state courts with exclusive state-court jurisdiction over a federal damage claim that may have had no previous counterpart under state law. See International Science & Tech. Inst., 106 F.3d at 1158 (stating that “[i]n creating a conditional right of action to enforce the TCPA in state courts, Congress neither exceeded its delegated powers nor invaded the province of state sovereignty, which still may be exercised to prohibit the action ... Congress enacted the TCPA to assist states where they lacked jurisdiction ... and it recognized state power to reject Congress’ [sic] authorization”). The “Acknowledgment” Interpretation Under a third interpretation, states may not “opt out” because the Supremacy Clause of the United States Constitution requires them to provide a judicial forum for prosecution of private TCPA damage claims. Under this interpretation, the language of the TCPA simply acknowledges the states’ rights to structure their court systems and apply neutral state-court procedural rules. See Schulman, 710 N.Y.S.2d at 372 (concluding that “the phrase ‘if otherwise permitted by the laws or rules of court of a State’ merely acknowledges the principle that states have the right to structure their own court systems and that state courts are not obliged to change their procedural rules to accommodate TCPA claims”); Biggerstaff, supra, at 416-46. To date, it does not appear that any state has enacted a statute that explicitly refuses to allow private TCPA damage claims in that state’s courts. See Biggerstaff, supra, at 416. The only court to date whose holding directly contradicts the acknowledgment interpretation is R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc. See 149 Md.App. 219, 815 A.2d 816, 827 (2003) (holding that Maryland had “opted out” of TCPA damage claims by enacting in 1989 — two years before the enactment of the TCPA — a state statute regarding unsolicited fax advertisements without allowing for private damage claims), cert, granted, 374 Md. 358, 822 A.2d 1224 (2003); contra Condon, 855 So.2d at 648 (holding Florida did not “opt out” of TCPA by, prior to enactment of TCPA, passing statutes regulating unsolicited fax advertisements without allowing for private damage claims); and Hooters of Augusta, Inc., 537 S.E.2d at 471-72 (same as Condon for Georgia). After scrutinizing the wording of the TCPA, we conclude that the relevant language of this statute does not have a plain and unambiguous meaning regarding the issues in this case. See Barnhart, 534 U.S. at 450, 122 S.Ct. at 950; Condon, 855 So.2d at 647 (stating that the “if otherwise permitted” language is ambiguous); Biggerstaff, supra, at 446 (stating that “significant ambiguity” exists in the statute); but see Autoflex Leasing, 16 S.W.3d at 817. Having found the relevant statutory language to be ambiguous, we now seek guidance in the relevant legislative history and consider the congressional purposes in enacting the TCPA. See Florida Power & Light Co., 470 U.S. at 737, 105 S.Ct. at 1603. 2. Legislative History of the TCPA From 1989 to 1991, Congress considered various bills addressing the telemarketing practices made possible by technological innovations, including the transmission of advertisements by fax, i.e., sending the advertisement in electronic form along a telephone line so that it is printed on paper at the receiving end. In the process, Congress held three hearings and produced three committee reports. The final bill combined features of three previous bills. Kaufman, 2 Cal.Rptr.3d at 306-12. In drafting the bills, Congress became aware of several problems associated with unsolicited fax advertisements. See Telemarketing Practices: Hearing on H.R. No. 628, H.R. No. 2131, and H.R. No. 2181 Before the Subcomm. on Telecomms, and Fin. of the House Comm, on Energy and Commerce, 101st Cong., 1st Sess., at 54-57 (1989) (hereinafter “Telemarketing Practices ”); H.R.Rep. No. 102-317, 1st Sess., at 25 (1991). “Since businesses [had] begun to express concern about the interference, interruptions and expenses that junk fax[es] ... placed upon them, states [were] taking action to eliminate these telemarketing practices. [Two states had] enacted laws banning the use of facsimile machines for unsolicited advertising. Similar bills [were] ... pending in the legislatures of about half the states.” H.R.Rep. No. 102-317,1st Sess., at 25 (1991). “[State laws] had limited effect, however, because States do not have jurisdiction over interstate calls. Many States ... expressed a desire for Federal legislation to regulate interstate telemarketing calls to supplement their restrictions on intrastate calls.” Sen. Rep. No. 102-178, 1st Sess., at 3 (1991), reprinted in 1991 U.S.C.C.A.N., at 1970. “[B]usiness owners [were] virtually unanimous in their view that they [did] not want their fax lines tied up by advertisers trying to send messages.” Telemarketing Practices, supra, at 54-55 (footnotes omitted). “Extensive research ... revealed no case of a company (other than those advertising via fax) which oppose[d] legislation restricting advertising via fax.” Id. at 54 n. 35. As a state legislator from Utah put it, “ ‘You get a message you didn’t want from people you don’t know on paper they didn’t buy.’ ” Id. at 54 (statement of Rep. Ken Jacob-sen). Richard Kessel, a New York state official, spearheaded the movement to ban unsolicited fax advertisements in his state after he was unable to fax a document to the governor’s office which, at the time, was processing an incoming advertisement. See Telemarketing Practices, supra, at 55. “The last thing you want when you’re trying to meet a deadline, or trying to get a memo to your boss ... is to be disturbed by someone trying to sell draperies or submarine sandwiches.” Id. In hearings held in 1991, the co-founder of the Center for the Study of Commercialism, Michael Jacobson, described the “numerous nuisance faxes” he had received and complained that they “not only use the recipient’s paper, but also prevent faxes from being sent out and prevent legitimate faxes from coming in.” Hearing on Sen. No. 1462, Sen. No. 1410, and Sen. No. 857 Before the Subcomm. on Communications of the Sen. Comm, on Commerce, Science, and Transp., 102d Cong., 1st Sess., 41 (1991) (statement of Michael Jacobson). The legislative counsel for the American Civil Liberties Union, Janlori Goldman, told the House subcommittee, “we ... support the ... limits on fax machines, in terms of sending unsolicited advertising. We think that because of the burden that is placed on the individual who has to pay for the cost of the communication, that that then justifies [a] broader ban [than that placed on telephone solicitations].” Telemarketing/Privacy Issues: Hearing on H.R. No. 130k and H.R. No. 1305 Before the Subcomm. on Telecomms, and Fin. of the House Comm, on Energy and Commerce, 102d Cong., 1st Sess., at 47. The subcommittee was well aware that a “festering problem [had] arisen from the so-called ‘junk fax.’ Junk fax is more than merely irritating. It represents an unfair shifting of the cost of advertising from the advertiser to the unwitting customer.... [Unsolicited and unwanted faxes can tie up a machine for hours and thwart the receipt of legitimate and important messages.” Id. at 3-4. Congress recognized that, although considered “[a]n office oddity during the mid 1980s, the facsimile machine has become a primary tool for business to relay instantaneously written communications and transactions.” H.R.Rep. No. 102-317, 1st Sess., 10 (1991). By 1991, millions of offices in the United States were sending more than thirty billion pages of information by fax each year in an effort to speed communications and cut overnight delivery costs. Id. But “the proliferation of fax machines has been accompanied by explosive growth in unsolicited facsimile advertising, or ‘junk fax.’ ” Id. at 10. “Facsimile machines are designed to accept, process, and print all messages ... The fax advertiser takes advantage of this basic design by sending advertisements to available fax numbers, knowing that [they] will be received and printed by the recipient’s machine. This type of telemarketing is problematic for two reasons. First, it shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.” H.R.Rep. No. 102-317, supra, at 10. “[W]hen a facsimile machine is receiving a fax, it may require several minutes or more to process and print the advertisement.” Id. at 25. “Only the most sophisticated and expensive facsimile machines can process and print more than one message at a time.” Id. “When an advertiser sends marketing material to a potential customer through regular mail, the recipient pays nothing to receive the letter.” Id. But the recipient of fax advertisements “assumes both the cost associated with the use of the facsimile machine and the cost of the expensive paper used to print out facsimile messages.” Id. “[T]hese costs are borne by the recipients] of the fax advertisement regardless of their interest in the product or service being advertised.” Id.; see also Sen. Rep. No. 102-178, 1st Sess., at 2 (1991), repainted in 1991 U.S.C.C.A.N., at 1969. Senator Ernest Hollings of South Carolina, the sponsor of the TCPA, in urging its passage, made the following statements regarding the civil damage provisions of the TCPA: The ... [Act] contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in State court against any entity that violates the [Act]. The [Act] does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action, as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court.... Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the [Act] if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this [Act]. 137 Cong. Rec. S16205-16206 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings). Congress enacted the TCPA in November of 1991. The measure was signed into law on December 20, 1991. Section 227(b) of the Act makes it “unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). The TCPA defines “unsolicited advertisement” as “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.” 47 U.S.C. § 227(a)(4). 3. The Advertisers’ Arguments for the “Opt In” Interpretation The Advertisers assert that Texas can permit private TCPA damage claims in its courts only by enacting legislation that specifically authorizes these claims. In support of this assertion, the Advertisers argue that the following substantiates the opt-in interpretation: (1) the Autoflex Leasing, Inc. case; (2) Senator Hollings’s remarks; (3) dictionary definitions; (4) other instances of the use of the phrase “otherwise permitted” in the United States Code; (5) Congress’s ability to enact a clearer statute if it intended either the opt-out interpretation or the acknowledgment interpretation; and (6) the legislative history of the 1999 amendment to section 35.47 of the Texas Business and Commerce Code. The Advertisers rely heavily on the Autoflex Leasing, Inc. case in which the Fort Worth Court of Appeals held that the “if otherwise permitted” language unambiguously requires a state to pass legislation or promulgate court rules allowing private TCPA damage actions before claimants may bring these claims in a state’s courts. See Autoflex Leasing, Inc., 16 S.W.3d at 817. After careful consideration of the language of the TCPA, the statutory structure, relevant legislative history, and the congressional purposes in enacting the TCPA, we respectfully disagree with the analysis of the Autoflex Leasing, Inc. court. See Florida Power & Light Co., 470 U.S. at 737, 105 S.Ct. at 1603; Blum, 465 U.S. at 896, 104 S.Ct. at 1548. Instead, we conclude that the relevant language of the TCPA is ambiguous. See Condon, 855 So.2d at 647 (stating that the “if otherwise permitted” language is ambiguous); Biggerstaff, supra, at 446 (stating that “significant ambiguity” exists in the statute); but see Autoflex Leasing, 16 S.W.3d at 817. Furthermore, we do not find the federal cases cited by the Autoflex Leasing, Inc. court persuasive in resolving this issue. Reviewing Senator Hollings’s comments as a whole and in context, they do not address the issue of whether the opt-in interpretation is correct. Condon, 855 So.2d at 647-48; Zelma, 778 A.2d at 596— 97. Rather, Senator Hollings’s comments show his concern about the bill’s silence as to the proper state court in which claimants should bring TCPA damage claims and his hope that the states would make their small claims courts available for these claims so that a claimant might receive fast and efficient relief without having to retain a lawyer. See Zelma, 778 A.2d at 596-97; 137 Cong. Rec. S16205-16206 (daily ed. Nov. 7, 1991) (statement of Sen. Hollings). Dictionary definitions do not clarify the ambiguity, but rather seem to confirm it. For example, one dictionary defines “permit” as “1: to consent to expressly or formally: grant leave for or the privilege of: Allow, Tolerate ... 2: to give (a person) leave: Authorize ...” Webster’s Third New International Dictionary 1683 (1993 ed.). This definition seems to favor the Advertisers’ position; however, it gives “allow” as a synonym and defines “allow” in pertinent part as meaning: “4: Permit ... a: to permit by way of concession ... b: to permit by neglecting to restrain or prevent ...” Id. at 58. The definition of this synonym weighs against the opt-in interpretation. The dictionary definitions show that the ordinary meaning of the relevant part of the TCPA is uncertain and that the TCPA does not unambiguously require states to expressly authorize TCPA damage claims. The Advertisers also point to various federal statutes that contain the words “otherwise permitted” or “permitted” as support for the opt-in interpretation. However, the Advertisers do not cite any cases interpreting these statutes, and we do not find that the text of these statutes alone is helpful in interpreting the TCPA in this case. See Zelma, 778 A.2d at 595-96 (finding comparison of TCPA language with the language of other federal statutes not to be helpful). The Advertisers also assert that, if Congress intended to achieve the results contemplated by the opt-out or acknowledgment interpretations, it could have done so directly and clearly by using other language. While this assertion is hardly debatable, it is also true that Congress could have more directly and clearly expressed any intent it had to require prior state authorization before allowing TCPA damage actions in state court. Therefore, this argument is neither convincing nor helpful in resolving the issue. The Advertisers also cite part of the legislative history for the 1999 changes to section 35.47 of the Texas Business and Commerce Code, which states that “each state must decide whether to permit its citizens to bring civil actions for violations of the [TCPA].” House Research Org., Bill Analysis, Tex. H.B. 23, 76th Leg., R.S. (1999). First, this legislative history is consistent with both the opt-in and the opt-out interpretations. Second, courts construing statutory language should give little weight to statements made by legislators after the enactment of the statute. In re Jane Doe, 19 S.W.3d 346, 352 (Tex.2000). Third, these statements regarding the TCPA were made eight years after its enactment by the research organization of the Texas House of Representatives, which was not involved in passage of the TCPA by the United States Congress. See Sullivan v. Finkelstein, 496 U.S. 617, 631, 110 S.Ct. 2658, 2667, 110 L.Ed.2d 563 (1990) (Scalia, J., concurring in part) (stating that “post-enactment legislative history” is an oxymoron and should not be considered in interpreting statutes and that even the proponents of its use limit it to statements from members of the same legislative body that enacted the statute). For these reasons, we do not find this Texas legislative history relevant or helpful in the interpretation of the TCPA. Similarly, the FCC memorandum opinion cited by the Recipients does not weigh strongly for or against the opt-in interpretation and does not constitute an interpretation by the FCC of the statutory language at issue in this case. After scrutinizing the language of the TCPA and considering the object sought to be obtained, the circumstances of the TCPA’s enactment, the legislative history, and the consequences of the different interpretations, we agree with the courts from the nine other states that have declined to adopt the opt-in interpretation. See Lary, — So.2d at—, —, 2003 WL 22463948, at *2-*5; Condon, 855 So.2d at 645-48; Kaufman, 2 Cal.Rptr.3d at 306-12; Reynolds, 79 S.W.3d at 908-10; Zelma, 778 A.2d at 593-98; Worsham, 772 A.2d at 871-74; Aronson, 51 Pa. D. & C. 4th at 423-36; Hooters of Augusta, Inc., 537 S.E.2d at 470-71; Schulman, 710 N.Y.S.2d at 370-72. Congress sought to penalize and discourage unsolicited fax advertisements because they are an unwelcome source of annoyance, disruption, and expense to consumers. See Telemarketing Practices, supra, at 5L-57; H.R.Rep. No. 102-317, 1st Sess., at 25 (1991). Congress intended to help states regulate and penalize unsolicited fax advertisements by overcoming the states’ inability to regulate interstate faxes. See Sen. Rep. No. 102-178, 1st Sess., at 3 (1991), reprinted in 1991 U.S.C.C.A.N., at 1970. By definition, this meant that no state statute allowed claimants to assert a damage claim based on unsolicited interstate faxes when the TCPA took effect. If we were to adopt the opt-in interpretation, that would mean that no private damage actions for unsolicited interstate faxes could be asserted in any state unless and until that state enacted an enabling statute. There is no apparent reason why Congress would structure TCPA damage actions in such an inefficient and ineffective manner. See Aron-son, 51 Pa. D. <& C. 4th at 429 (stating that there would be no reason why Congress would have created a statutory scheme in which it looked exclusively to the state courts to enforce private damage actions and in which, at the same time, Congress prevented states from entertaining these actions until each state passed an enabling statute, even though state courts otherwise would have been able to hear these federal claims). We reject the opt-in interpretation. 4. “Opt-Out” Versus “Acknowledgment” Interpretations The acknowledgment interpretation, which would construe the TCPA to provide an unconditional private damage claim under federal law that must be asserted in state court and cannot be declined, creates a troubling incongruity. As shown below, the acknowledgment interpretation is inconsistent with the text of the TCPA, because it would make language in the TCPA doubly redundant. The supporters of the acknowledgment interpretation argue that the “if otherwise permitted” clause simply acknowledges that states have the right to structure their own court systems and are not required to change their neutral procedural rules to accommodate TCPA damage claims. See Schulman, 710 N.Y.S.2d at 870-72; Biggerstaff, supra, at 416-46. As courts of general jurisdiction, it is presumed that Texas district courts have the power to adjudicate private damage claims under federal statutes, unless the Texas Legislature or the United States Congress provide that they do not. See U.S. Const., art. VI, cl. 2; Tex. Const, art. V, § 8; Tex. Gov’t Code §§ 24.007, 24.008; Dubai Petroleum Co. v. Kazi, 12 S.W.Bd 71, 75 (Tex.2000). These principles are well-established under this country’s federal system of government and under the Supremacy Clause of the United States Constitution. See Howlett v. Rose, 496 U.S. 356, 367-71, 110 S.Ct. 2430, 2438-41, 110 L.Ed.2d 332 (1990); Dubai Petroleum Co., 12 S.W.3d at 75. There is no requirement that anything be stated in the federal statute for these principles to apply; as long as Congress duly enacts a statute that it has the power to enact under the United States Constitution, these principles are triggered and state courts of general jurisdiction must entertain these claims unless the federal statute says otherwise or unless neutral state procedural rules that are not preempted prevent the assertion of a claim. See Howlett, 496 U.S. at 367-71, 110 S.Ct. at 2438-41. Therefore, Congress had no need to state these principles in the TCPA. Further, the procedural matters mentioned by proponents of the acknowledgment interpretation are generally procedural law or rules relating to matters such as subject-matter jurisdiction, amount in controversy, or venue — all of which simply allow the state, by its neutral procedural rules, to decide which state court will hear the federal claim. See Biggerstaff, supra, at 418. While Congress might have wanted to include a provision in the statute that would confirm this reality, that confirmation is already accomplished by other language in the TCPA — “[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 ...” 47 U.S.C. § 227(b)(3) (emphasis added). This italicized language unmistakably recognizes the constitutional realities that would apply anyway. It would be redundant and risk rendering the words meaningless to interpret the “if otherwise provided” clause to have the same meaning. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 449, 151 L.Ed.2d 339 (2001) (stating that courts should construe the language of federal statutes, if possible, so that no word is rendered meaningless or insignificant). Given the language of the TCPA, the statute’s purposes, the provision allowing state attorneys general to obtain the same remedies for their citizens that are available in the private damage actions, and Congress’s reasonable and legitimate concern that it not overburden state court systems with potentially large numbers of private claims, we agree with the majority view that the opt-out interpretation is the correct one. Enabling legislation is not required, but a state may prohibit private TCPA damage actions in its courts. See International Science & Tech. Inst., 106 F.3d at 1156-58; (explaining purposes of TCPA and why opt-out interpretation makes sense from a policy perspective); Lory, — So.2d —, — & n. 2, 2003 WL 22463948, at ⅝2-*5 & n. 2 (adopting opt-out interpretation and disapproving of acknowledgment interpretation); Condon, 855 So.2d at 645-48 (adopting opt-out interpretation); Kaufman, 2 Cal.Rptr.3d at 312 (holding that states can opt out of TCPA damage actions and that California has not done so); Reynolds, 79 S.W.3d at 910 (adopting opt-out interpretation); Worsham, 772 A.2d at 874; Aronson, 51 Pa. D. & C. 4th at 430 (adopting opt-out interpretation); Hooters of Augusta, Inc., 537 S.E.2d at 471 (adopting opt-out interpretation); but see Schulman, 710 N.Y.S.2d at 372 (adopting acknowledgment interpretation); Autoflex Leasing, 16 S.W.3d at 817 (adopting opt-in interpretation). One commentator who strongly supports the acknowledgment interpretation claims that it is preferable because courts should not construe a statute to alter a delicate constitutional balance without an explicit directive from Congress that this was intended. Biggerstaff, supra, at 426-33. The argument is that the opt-out interpretation upsets the fragile balance of this country’s federal system of government and threatens to undermine the Supremacy Clause. See id. But the federal system of government in our country is strong, and the opt-out interpretation gives effect to what its proponents conclude is the statutory directive from Congress under the Supremacy Clause. Rather than undermining the authority of federal law, this interpretation recognizes it as the supreme law of the land. If Congress decides that it is not satisfied with the results of its opt-out system for private TCPA damage claims in state courts, our federal lawmakers are free to make these claims mandatory in all state courts by amending the TCPA and preempting state statutes to the contrary. For these reasons, we respectfully decline to adopt the acknowledgment interpretation. Instead, we hold that the Recipients may assert TCPA damage claims as long as Texas has not prohibited them from doing so. 5. Section 35.47 of the Texas Business and Commerce Code Before the enactment of the TCPA, Texas enacted a statute regulating certain unsolicited fax advertisements without providing for any private damage claim. See Act of May 28, 1989, 71st Leg., R.S., ch. 783, § 1, 1989 Tex. Gen Laws 3469, 3469-70. The effect, if any, of this prior statute on the ability of the Recipients to assert TCPA damage claims is not before us. In their primary argument on appeal, the Advertisers contend the trial court correctly granted summary judgment based on the opt-in interpretation. In the course of this argument, the Advertisers expressly reject the opt-out interpretation of the TCPA. However, in an alternative appellate argument, they assert that, as to faxes sent before September 1, 1999, Texas has opted out of the TCPA based on the 1989 unsolicited fax statute. See 1989 Tex. Gen Laws at 3469-70. Although the Advertisers asserted in the trial court that there is no implied damage action under this statute, they did not assert as a summary-judgment ground any opt-out theory or any theory under which the 1989 unsolicited fax statute precludes the Recipients from asserting their TCPA damage claims. Therefore, this court cannot affirm the trial court’s summary judgment on any such grounds because the Advertisers did not assert them in the trial court. See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993) (holding appellate court cannot affirm trial court’s summary judgment on a ground not expressly stated in motion for summary judgment). We are limited to reviewing the ground that the Advertisers did assert — that the Recipients’ claims are barred because Texas did not authorize the filing of TCPA damage claims in Texas courts until September 1, 1999. Accordingly, we conclude that the trial court erred by granting summary judgment based on its implied ruling that the Recipients’ TCPA damage claims are barred under the opt-in interpretation. B. Are the Recipients’ TCPA damage claims barred because the TCPA does not apply to intrastate faxes? The Recipients also assert that the trial court erred by impliedly granting summary judgment based on the Advertisers’ argument that the TCPA applies only to interstate facsimile advertisements. The Recipients argue that the TCPA applies to intrastate faxes based on its plain language. The Recipients are correct. The TCPA regulates unsolicited telephone calls and fax communications. See 47 U.S.C. § 227. The TCPA amended the Communications Act of 1934. See 47 U.S.C. § 151 et seq. Although the Communications Act contains an interstate only restriction, the TCPA itself contained a conforming amendment that expressly excepts the TCPA from the Communications Act’s interstate-only restriction. See 47 U.S.C. § 152(b) (1994); Texas v. Am. Blastfax, Inc., 121 F.Supp.2d 1085, 1088 (W.D.Tex.2000); Omnibus Int’l, Inc. v. AT & T, Inc., 111 S.W.3d 818, 821-22 (Tex.App. — Dallas 2003, pet. granted, judgm’t vacated w.r.m.); Hooters of Augusta, Inc., 537 S.E.2d at 471-72 & n. 7. Under the TCPA, “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). The statute defines the term “unsolicited advertisement” as “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.” 47 U.S.C. § 227(a)(4). Although the TCPA does not specifically state that it covers both interstate and intrastate faxes, section 227(b)(1)(C) applies to unsolicited faxes sent by any person in the United States, without limiting its scope to interstate faxes. See 47 U.S.C. § 227(b)(1)(C). Furthermore, in expressly excepting the TCPA from the interstate-only restriction of the Communications Act, the conforming amendment evinces a congressional intent that the TCPA apply to intrastate fax communications. See Am. Blastfax, Inc., 121 F.Supp.2d at 1088; Omnibus Int’l, Inc., 111 S.W.3d at 821-22; Hooters of Augusta, Inc., 537 S.E.2d at 471 (holding Congress expressed its intent to regulate both interstate and intrastate communications by excepting the TCPA from interstate limitation of 47 U.S.C. § 152). The statutory scheme of the TCPA is coherent and consistent, and the language relevant to this issue is unambiguous. See Barnhart, 534 U.S. at 450, 122 S.Ct. at 950. Therefore, we hold that the TCPA applies to both interstate and intrastate facsimile advertisements. See Am. Blastfax, Inc., 121 F.Supp.2d at 1088; Omnibus Int’l, Inc., 111 S.W.3d at 821-22; Hooters of Augusta, Inc., 537 S.E.2d at 471. We find the trial court erred in granting summary judgment based on its implied ruling that the TCPA applies only to interstate faxes. C. Does the TCPA fall outside Congress’s power under the Commerce Clause? The trial court also granted summary'judgment based on its implied ruling that, if the TCPA applies to intrastate faxes, Congress lacks the power to enact the TCPA under the Commerce Clause of the United States Constitution. First, Congress has authority to regulate intrastate faxes. This is because telephones and telephone lines — even when used solely for intrastate purposes — are part of an aggregate interstate system and therefore are inherent instrumentalities of interstate commerce. See United States v. Weathers, 169 F.3d 336, 341 (6th Cir.1999) (“It is well established that telephones, even when used intrastate, constitute instrumentalities of interstate commerce”) (emphasis omitted); Am. Blastfax, Inc., 121 F.Supp.2d at 1087. Thus, Congress may regulate purely intrastate telephone activity to protect interstate commerce. See United States v. Gilbert, 181 F.3d 152, 158 (1st Cir.1999) (discussing the “long standing” line of cases holding Congress may regulate purely intrastate telephone activity under the Commerce Clause); Pavlak v. Church, 727 F.2d 1425, 1427 (9th Cir.1984) (“Federal jurisdiction over purely intrastate communications under the Federal Communications Act derives from Congress’ plenary power to regulate interstate commerce through regulating the means of such commerce.... Since the telephone is an instrumentality of interstate commerce, Congress has plenary power under the Constitution to regulate its use and abuse”) (citations and quotations omitted); see also United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 1629, 181 L.Ed.2d 626 (1995) (stating “Congress is empowered to regulate and protect the in-strumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”). Congress has the requisite power to regulate intrastate faxes and was not acting beyond its powers in enacting the TCPA. Indeed, to hold otherwise would undermine well-established federal law in other areas. See, e.g., Alley v. Miramon, 614 F.2d 1372, 1879 (5th Cir.1980) (stating “[t]his court has consistently held that the intrastate use of the telephone may confer jurisdiction over a private action under Section 10(b) and Rule 10b-5 [of the federal securities laws]”). Accordingly, we find the trial court erred in granting summary judgment based on its implied ruling that the TCPA falls outside the power granted to Congress in the Commerce Clause of the United States Constitution. See Am. Blastfax, Inc., 121 F.Supp.2d at 1087-88 (holding Commerce Clause challenge to TCPA failed). D. Does the TCPA’s minimum damage provision violate due process under the United States and Texas Constitutions on the ground that it is grossly disproportionate to any damage suffered by the Recipients? The trial court also granted summary judgment based on its implied ruling that the TCPA’s minimum damage award of $500 per fax violates due process under the Due Process Clause of the Fifth Amendment to the United States Constitution and under the Due Course of Law Clause of the Texas Constitution. See U.S. Const, amend. V; Tex. Const, art. I, § 16. Given the Supremacy Clause of the United States Constitution, it is unusual to have a federal statute challenged on state constitutional grounds; however, the Advertisers assert that Congress voluntarily made the Texas Constitution applicable to the TCPA by means of the TCPA’s “if otherwise permitted” language. See U.S. Const., art. VI, cl. 2. For the sake of argument, we presume the Advertisers are correct. When, as in this case, the Advertisers have not argued that differences in state and federal constitutional guarantees are material to the case, and none are apparent, we limit our analysis to the Fifth Amendment Due Process Clause and presume that its protections are congruent with those of the Texas Constitution’s Due Course of Law Clause. See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex.2002). The Advertisers contend that the $500 minimum amount of damages per TCPA violation that a claimant may recover in a private damage action violates constitutional due process because this minimum amount is “grossly disproportionate” to any actual harm suffered by the Recipients. See 47 U.S.C. § 227(b)(3). A statutory penalty violates due process “only where the penalty prescribed is so severe and oppressive as to be wholly dispropor-tioned to the offense and obviously unreasonable.” St. Louis, Iron Mt. & S. Ry. Co. v. Williams, 251 U.S. 63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919). The Advertisers assert that the actual cost of receiving an unsolicited fax is two to forty cents per fax, yet the minimum damage amount is $500 per fax. But the TCPA damage provision was not designed solely to compensate each private injury caused by unsolicited fax advertisements. It also was intended to address and deter the overall public harm caused by such conduct. See Am. Blastfax, Inc., 121 F.Supp.2d at 1090. The TCPA damage amount was meant (1) to take into account the difficult-to-quantify business-interruption costs imposed upon recipients of unsolicited fax advertisements; (2) to deter the unscrupulous practice of shifting these costs to unwitting recipients of unsolicited fax advertisements; and (3) to give an adequate incentive for an individual claimant to bring suit on his own behalf. See id.; Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162,1166 (S.D.Ind.1997). The Supreme Court has stated that statutory damages designed to address such “public wrongs” need not be “confined or proportioned to [actual] loss or damages; for, as it is imposed as a punishment for the violation of a public law, the Legislature may adjust its amount to the public wrong rather than the private injury, just as if it were going to the state.” Williams, 251 U.S. at 66-67, 40 S.Ct. at 73. In Williams, the Supreme Court found that the statute at issue, a fixed penalty for passenger overcharges, did not violate due process. See id. In explaining its ruling, the Court stated: “[w]hen [the statute] is considered with due regard for the interests of the public, the numberless opportunities for committing the offense, and the need for securing uniform adherence to established passenger rates, we think it properly cannot be said to be so severe and oppressive as to be wholly dispropor-tioned to the offense or obviously unreasonable.” Id. The same is true here. See Am. Blastfax, Inc., 121 F.Supp.2d at 1091. Congress identified two legitimate public harms intended to be addressed by the TCPA’s ban on unsolicited fax advertisements: (1) these fax advertisements can substantially interfere with a business or residence because fax machines generally can handle only one message at a time, to the exclusion of other messages; and (2) unsolicited fax advertisements unfairly shift nearly all of the advertiser’s printing costs to the recipient of the advertisement. See Kenro, 962 F.Supp. at 1167. The TCPA’s $500 minimum damages provision, when measured against the overall harms of unsolicited fax advertising and the public interest in deterring this unwelcome conduct, is not “so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.” See Am. Blastfax, Inc., 121 F.Supp.2d at 1091 (holding $500 minimum damage amount under TCPA does not violate due process); Kenro, 962 F.Supp. at 1166-67 (same); ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 203 Ariz. 94, 50 P.3d 844, 850-52 (2002) (same); Kaufman, 2 Cal.Rptr.3d at 312 (same); Harjoe v. Herz Fin., 108 S.W.3d 653, 654-55 (Mo.2003) (same). Accordingly, we find the trial court erred in granting summary judgment based on its implied ruling that the TCPA minimum damage amount violates constitutional due process. E. Does the TCPA violate the Advertisers’ free-speech rights under the United States and Texas Constitutions? The trial court also granted summary judgment based on its implied ruling that the TCPA violated the Advertisers’ free-speech rights under the United States and Texas Constitutions. Because the Advertisers have not shown how the text, history, or purpose of the Texas state constitutional provision affords them any greater protection than the First Amendment in the context of this case, even if the Texas Constitution applied to the TCPA, we still would apply the same analysis under the Texas Constitution and the First Amendment. See Bentley, 94 S.W.3d at 578. The Advertisers contend the TCPA’s ban on unsolicited fax advertisements is an impermissible regulation of commercial speech. See 47 U.S.C. § 227(a)(4) (defining “unsolicited advertisement” as “material advertising the commercial availability or quality” of goods and services). Because commercial speech occupies a “subordinate position in the scale of First Amendment values,” a statute regulating commercial speech passes constitutional muster as long as it directly advances a substantial governmental interest in a manner that forms a “reasonable fit” with the interest. See Board of Trustees of State Univ., N.Y. v. Fox, 492 U.S. 469, 477-80, 109 S.Ct. 3028, 3033-35, 106 L.Ed.2d 388 (1989). The issue before this court is whether the TCPA’s ban on unsolicited fax advertisements meets this standard. A federal district court in Oregon was the first to address this issue. In Destination Ventures, Ltd. v. F.C.C., 844 F.Supp. 632 (D.Or.1994), affd 46 F.3d 54 (9th Cir.1995), that court found Congress’s interest in preventing cost shifting “ ‘from the advertiser to the unwitting customer’ ” and in preventing fax machines from being tied up by unwanted messages was a substantial interest that is identified in the TCPA’s legislative history. See id. at 637 (quoting TCPA House Report). We already have determined that these interests are sufficiently legitimate to justify the TCPA’s $500 per-violation minimum damages provision. Furthermore, as the district court in Destination Ventures stated, “there were repeated, uncontradicted references made before Congress describing how facsimile advertising shifts economic burdens from the advertiser to the consumer ... Congress legitimately relied upon the testimony from authorities, as well as the contemporaneous state laws and media reports.” Id. We find Congress’s interests in passing the TCPA— preventing “unwitting customers” from bearing the brunt of advertising costs and preventing unwanted fax machine interference — are substantial and real. See Am. Blastfax, Inc., 121 F.Supp.2d at 1091-92. Inasmuch as Congress’s interests in preventing the harms caused by unsolicited fax advertising are substantial and real, banning this advertising directly advances these interests. See Destination Ventures, 844 F.Supp. at 637 (stating that “[b]ecause Congress has addressed a substantial interest in protecting consumers from the economic harms inflicted through unsolicited advertisement faxes ... the subsequent banning of those unsolicited faxes directly advances that interest”). Thus, the only remaining inquiry is whether there is a “reasonable fit” between the TCPA’s ban on unwanted fax advertisements and the interests directly advanced by the ban. See Fox, 492 U.S. at 480-81, 109 S.Ct. at 3034-35. The district courts in Destination Ventures, Kenro, and Am. Blastfax, Inc. considered and rejected as