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Telemarketers are annoying, so we're on the "Do Not Call" registry, and we don't answer our phone unless we recognize the caller's number. But how do you combat unsolicited advertising faxes?
If you're Compressor Engineering Corporation, you sue the sender in federal court ... and that's okay with the Sixth Circuit Court of Appeals.
Compressor Engineering Corporation brought suit in federal court after Manufacturers Financial Corporation and Charity Marketing LLC allegedly sent unsolicited fax advertisements to Compressor Engineering and at least 39 others recipients. Compressor Engineering did not have an established business relationship with either defendant, and did not give either defendant permission to send Compressor Engineering advertisements by fax.
Compressor Engineering argued that the district court had federal question jurisdiction and jurisdiction under the Telephone Consumer Protection Act (TCPA), a federal statute.
The district court dismissed the case for lack of subject matter jurisdiction, following the vast majority of federal courts to address this question, as well as an unpublished opinion from the Sixth Circuit Court of Appeals, Dun-Rite Construction, Inc. v. Amazing Tickets, Inc., and found that the TCPA is not a sufficient basis for federal question jurisdiction. The district court said the proper recourse was a private right of action in state court.
The Sixth Circuit reversed and remanded the case, noting that it had "decided squarely that a district court has federal question jurisdiction over the claims under the Telephone Act."
What does this mean for your clients? The answer depends on whether you represent an unsolicited advertising fax sender or recipient, but the short answer is that you could be litigating unwanted faxes in federal court.