Confusion over the Telephone Consumer Protection Act

Commentary and analysis of the oral arguments in Mims v. Arrow Financial Services, on the Supreme Court's 2011-12 appellate docket. The Telephone Consumer Protection Act was enacted by Congress in 1991 to fill a gap in state consumer protection statutes relating to auto-dialing technology, unsolicited “robo-calls”, and abusive telemarketing practices. The appeal in Mims focuses on language in the statute that provides: “A person or entity may, if otherwise permitted by the laws of rules of a State, bring an action in an appropriate state court.” The Court will decide whether the statutory language requires private TCPA lawsuits to be brought in state court only, divesting federal courts of jurisdiction, or whether the statutory language permits individuals to bypass state courts and pursue TCPA violations in federal court.Although the Mims appeal does not involve a class action but rather an individual lawsuit, the Court's decision may have implications for TCPA class action litigation. During the past decade, federal and state courts have entertained a wave of so-called “blast fax” class actions for alleged violations of the TCPA. While some states have allowed certification of TCPA claims, other states have rejected this. Federal courts that have entertained TCPA class actions in their diversity jurisdiction have split regarding whether such cases can be certified under Federal Rule 23.At oral argument on November 28, 2011, Chief Justice Roberts Jr. characterized the TCPA as “the strangest statute I have ever seen,” and Justice Samuel Alito deemed it “the oddest creature.”