On Monday, the Supreme Court will hear argument in the case of Mims v. Arrow Financial Services.  Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans.  Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails.  Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (TCPA), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone.  The district court dismissed the complaint and the Eleventh Circuit upheld the dismissal on the grounds that Congress gave state courts exclusive jurisdiction over TCPA lawsuits and that, therefore, federal courts lack subject matter jurisdiction.  The Supreme Court granted Mims’ appeal.

A brief filed by the National Association of Consumer Advocates (an AFJ member organization) and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.”  The organizations added that “this unfortunate state of affairs is the failure of the TCPA’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.” 

The result of the Eleventh Circuit’s rule, according to the brief, is that differing state standards apply to the TCPA that unfairly disadvantage some state residents.  “Differences in degrees of federal consumer protection based on state residency are unacceptable; that the TCPA’s minimal standards of privacy are unenforceable now in at least two states – Maryland and Texas – is a result that should attain only with the explicit and unambiguous Congressional approval that is lacking here.” 

If the Supreme Court sides with Arrow, consumers will be far less capable of holding companies accountable for unlawful telephone harassment in federal court and might enjoy weaker consumer protections based on the state in which they live.

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