It is not often that U.S. Supreme Court justices confess to confusion, but during oral argument on Nov. 28, 2011, in Mims v. Arrow Financial Services, the justices collectively indicated their befuddlement with the Telephone Consumer Protection Act. Chief Justice John Roberts Jr. called it “the strangest statute I have ever seen,” and Justice Samuel Alito Jr. deemed it “the oddest creature.” Justice Elena Kagan — summarizing the justices’ bewilderment — concluded: “Both sides agree it’s odd, and all nine justices agree it’s odd. I mean, I think we can say that this statute is odd. And the question is, where do we go from there? And where — you know, what is the default position? If it’s odd and we can’t figure it out, the default position seems to be federal courts have jurisdiction over federal questions.”
At the heart of the justices’ confusion is the TCPA, enacted by Congress in 1991 to fill a gap in state consumer protection statutes relating to auto-dialing technology, unsolicited “robo-calls,” abusive telemarketing practices, prerecorded messages and “junk faxes.” Prior to its enactment, more than 40 states had enacted restrictions on abusive telecommunication practices. However, to evade these intrastate restrictions many companies moved their operations across state lines and continued their abusive practices.
