The Telephone Consumer Protection Act (TCPA) was in enacted in 1991 in response to consumer complaints about the abuses of telephone technology. It was determined by Congress that because telemarketers were escaping state prohibitions on nuisance calls, federal legislation was necessary. Some of the invasive telemarketing practice the TCPA bans include:
- Placing automated calls to private residence or cell phones without authorization;
- Sending unsolicited faxes without having a preexisting business relationship; and
- Using auto-dialers to call more than one of a business’s phone lines simultaneously
A state’s attorney general is authorized under the TCPA to bring a civil action to enjoin prohibited practices and to recover damages on the behalf of a resident. Individuals are also allowed to bring lawsuits for statutory violations in either state or federal court. Visit our blog here to read a further breakdown of the TCPA by our experienced attorneys at the Krohn & Moss, Ltd. Consumer Law Center.
Mims v. Arrow Financial Services
In the case, Mims v. Arrow Financial Services, LLC, the plaintiff (Mims) sued Arrow Financial (a debt-collection agency) in a Florida federal court. It was alleged by Mims that the agency repeatedly used an automatic telephone dialing system or prerecorded or artificial voice to call his cell phone. Arrow Financial did not have consent to do this. Mims brought the action in federal court under 28 U.S.C. Section 1331, which says that federal courts can hear claims that arise under the laws of the United States.
The Lower Courts
However, the case was dismissed by the United States District Court for the Southern District of Florida due to lack of subject matter jurisdiction. Their reasoning was that under the TCPA “a private litigant “may” seek redress in an appropriate state court as long as the action is permitted by the laws or the rules of a court of that state.” This decision was affirmed by the United States Court of Appeals for the Eleventh Circuit.
The Supreme Court
The question before the Court in this case was whether the “provision for private actions to enforce the TCPA render[ed] the state courts the exclusive arbiters of such actions.” The Court found that the TCPA’s grant of jurisdiction to the state courts did not bar the U.S. district courts’ from exercising their federal question jurisdiction. Therefore, the state and federal courts have concurrent jurisdiction over private TCPA lawsuits.
The Court examined the Congressional findings that were related to certain aspects of telemarketing and the efforts made by the states to restrict telemarketing. It was noted by the Court that Congress provided “complementary” means for the enforcement of the TCPA. These means include:
- Allowing a state attorney general to “brain a civil action on behalf of [State] residents” as long as there is reason for the Attorney General to believe that a person has violated the TCPA.
- Allowing a private litigant to bring a TCPA action in state court as long as it is “permitted by the laws or rules of a court of [the] State.”
The Court found that while the TCPA does grant jurisdiction of private actions to the state courts, it did not make jurisdiction exclusive to the state courts. Therefore, private actions brought under the TCPA can be commenced in federal or state court.
If you or a loved one has been subjected to these aggressive tactics by a creditor, please contact us immediately. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at www.westopdebtcollectors.com