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.

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