This week, the Supreme Court heard oral arguments in a case arising under the Telephone Consumer Protection Act (“TCPA”). The Act governs the conduct of all telephone solicitation in the United States, including solicitations sent via fax or to cellular telephones via text or email messaging. While the case does not address any of the substantive ambiguities in that Act, or the FCC’s rules implementing the Act, it deals exclusively with a narrow legal question that only a lawyer (or nine Justices) could love. The outcome of the case, which is expected in a few months, could significantly affect the calculus of risk that telemarketers face in attempting to comply with the TCPA.
The plaintiff, Mr. Mims, received about a dozen calls from Arrow Financial Services, a subsidiary of Sallie Mae. For some reason, Mr. Mims sued in Federal Court in Florida for damages and for injunctive relief. For reasons equally obscure, Arrow moved to dismiss the case on grounds that the TCPA only permits individual plaintiffs (this was not a class action suit) to sue in Small Claims Court or other state courts. The trial court agreed and the Federal Circuit Court upheld the trial court’s decision. Instead of refiling the case in state court, the plaintiff elected to seek Supreme Court review and the Court accepted the case and heard oral arguments on November 28.
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