Advertising Law Blog

    The United States Supreme Court has spoken, and the doors of federal courthouses are now fully open to anyone wishing to sue telemarketers under the Telephone Consumer Protection Act (TCPA). Previously, those who received unsolicited faxes, text messages and "robo" calls had only a limited ability to sue in federal court because when it was passed in the early 90s, the TCPA contemplated that lawsuits would be filed in small claims and other state courts. This was a rarity in United States law, because almost every other federal statute allows a plaintiff to make his or her case in federal court. Until last week, some federal courts followed the general rule, but others limited the right to file TCPA claims in federal court. That all changed on January 18, 2012, when the Supreme Court decided the case Mims v. Arrow Financial Services, LLC. In a rare decision where all nine judges agreed, the Supreme Court ruled that, despite the unusual language of the TCPA, a plaintiff has the right to choose between state and federal courts as the forum of choice: "We hold, therefore, that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA." A plaintiff wishing to be in federal court no longer needs to show that the defendant is diverse (from another state) from the plaintiff.

    The confusion that the Supreme Court decided to address was caused by the following language in the law: "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring [a lawsuit] in an ap­propriate court of that State." Some courts had considered that phrase to mean a person could only sue in state court. But the Supreme Court decided that just because someone MAY file suit in a state court, it didn't mean that someone could ONLY file suit in state court. Justice Ruth Bader Ginsburg, writing for the entire court, explained, the law "does not state that a private plaintiff may bring an action under the TCPA 'only' in state court, or 'exclusively' in state court." The 2012 decision was issued less than two months after oral arguments.

    The Supreme Court also reviewed the statute and described how the TCPA prin­cipally outlaws five practices: "First, the [TCPA] makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any emer­gency telephone line, hospital patient, pager, cellular telephone, or other service for which the receiver is charged for the call. [Text messages are included in this provision]. See 47 U. S. C. §227(b)(1)(A). Second, the TCPA forbids using artificial or prerecorded voice messages to call residential telephone lines without prior express consent. §227(b)(1)(B). Third, the [TCPA] proscribes sending unsolicited advertisements to fax ma­chines. §227(b)(1)(C). Fourth, it bans using automatic telephone dialing systems to engage two or more of a business's telephone lines simultaneously. §227(b)(1)(D). In 2010, Congress amended the statute to prohibit an additional practice: the manipulation of caller-identification information. See Truth in Caller ID Act of 2009, Pub. L. 111-331, 124 Stat. 3572."