Businesses today still attract customers the old-fashioned way: by telephone solicitation. Customer solicitation/retention studies show that among the most successful methods for businesses to win and retain customers is by telephone call, which is why telemarketing remains a major source of new and repeat customer business in the US. Federal regulators have restricted the use of certain telemarketing practices to protect consumers from the more abusive uses of telephone technology: the use of robo or auto-dialer systems, prerecorded or automated voice messages, telemarketing calls or text messages ("SMS") to mobile telephones, and faxes of unsolicited advertisements. The FTC also manages a National Do-Not-Call Registry, and companies are required to comply with company-specific do-not-call requests from prospective customers. Nevertheless, as anyone with a residential wireline telephone knows, consumer telemarketing remains active in the US.

The US Supreme Court, in a unanimous January 18, 2012 opinion in Mims v. Arrow Financial Services, LLC, No. 10-1195, resolving a major split among the various US Circuit Courts of Appeal, has definitively ruled that private actions brought by consumers seeking redress for violations of The Telephone Consumer Protection Act of 1991 ("TCPA" or "Act"), 47 U.S.C. § 227, may be brought in federal district court as well as state court. Reversing the US Court of Appeals for the Eleventh Circuit and a Florida district court, the Court held that because a federal statute creates the right of action and federal law, including FCC rules, "furnishes the substantive rules of decision", therefore the TCPA claim arises under the laws of the United States for "federal question" jurisdiction to exist under 28 U.S.C. § 1331. Here, the TCPA's language was admittedly "state-court oriented". While the TCPA in various provisions provides a permissive grant of jurisdiction to state courts, the Court held that this does not deprive US district courts of federal question jurisdiction over private TCPA suits. Unless Congress expressly "or by fair implication" divests federal courts of their federal question authority to adjudicate a dispute, federal courts may adjudicate claims under federal law. In fact, federal courts have exclusive jurisdiction over state-initiated TCPA suits under the TCPA. Stated another way, though the TCPA provides permissive state-court jurisdiction over certain TCPA claims, the Court held that nothing in that statutory language makes state-court jurisdiction exclusive, "or otherwise purports to oust federal courts of their § 1331 jurisdiction." In other words, this opinion is a warning to federal legislators that if there is any ambiguity about federal question jurisdiction over private lawsuits arising under a federal statute, courts will side in favor of finding federal question jurisdiction.

This Supreme Court opinion resolves a split among the Circuit Courts of Appeal in which the 9th, 3rd, 2nd, 5th and 4th Circuits had held that US district courts lack federal-question jurisdiction over private TCPA actions, while the 6th and 7th Circuits had held to the contrary. The likely impact of this decision will be to encourage the filing of more TCPA claims by plaintiffs in the federal courts—where the requirements of federal substantive law may be more effectively identified and enforced—rather than in state court now that the threat of dismissal for lack of federal question jurisdiction is no longer present.

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