A Question Worth Answering Under The Telephone Consumer Protection Act: U.S. Supreme Court To Hear Whether The TCPA Contemplates Suits In Federal Courts

There is no question that Congress contemplated a private right of action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b)(3), and the plaintiffs' bar has taken full advantage of that right. It has been less clear, however, which courts have jurisdiction over such suits. The U.S. Supreme Court recently granted certiorari on this very issue in Mims v. Arrow Financial Services.

Background

Under Section 227 of the TCPA, a person "may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State..." an action for a TCPA violation. Id. (emphasis added). The statute is silent, however, regarding whether, in granting jurisdiction to state courts under certain conditions, Congress meant to divest U.S. district courts of their federal question jurisdiction and bar the filing of such suits in federal courts.

The Second, Third, Fourth, Fifth, Ninth, and Eleventh Circuits have all held that federal courts lack federal question jurisdiction over TCPA private actions. See,

Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, Ltd., 156 F.3d 432 (2nd Cir. 1998) (holding state courts have exclusive jurisdiction over a cause of action created by the TCPA) ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3rd Cir. 1998) (holding Congress intended to refer private litigants under the TCPA to state court, and to preclude federal question jurisdiction) International Science & Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997) (holding state courts have exclusive jurisdiction over TCPA private actions) Chair King, Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir. 1997) (holding Congress granted state courts exclusive subject matter jurisdiction over TCPA private actions) Murphy v. Lanier, 204 F.3d 911 (9th Cir. 2000) (holding state courts have exclusive jurisdiction over a private cause of action created by TCPA) Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287 (11th Cir. 1998), modified, 140 F.3d 898 (11th Cir. 1998) (holding Congress intended to assign the TCPA private right of action to state courts exclusively) On the other hand, the Sixth and Seventh Circuits have ruled that federal courts do have federal question jurisdiction over private TCPA suits. See,

Charvat v. Echostar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (holding federal district courts have subject matter jurisdiction over TCPA private actions) Brill v...