                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0388n.06

                                            No. 10-1325

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                             FILED
APB ASSOCIATES, INC.,                    )
                                         )
                                                                        Jun 07, 2011
       Plaintiff-Appellant,              )                        LEONARD GREEN, Clerk
                                         )
v.                                       )                    On Appeal from the United States
                                         )                    District Court for the Eastern
BRONCO’S SALOON, INC., BRONCO’S )                             District of Michigan
ENTERTAINMENT, LTD., T&R ENTERPRISES, )
INC., RIVER ENTERTAINMENT LLC, AND 31650 )
WEST EIGHT MILE, INC.,                   )
                                         )
       Defendants-Appellees.             )




Before:          BOGGS and SILER, Circuit Judges; and VAN TATENHOVE, District Judge.*

                 PER CURIAM. This is an appeal from the district court’s dismissal for lack of

subject matter jurisdiction. The Plaintiff-Appellant brought a claim in federal court under the

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(3), which provides for a private

right of action in state court.

          The facts of this case are simple: APB brought this suit in federal court after allegedly

receiving an unsolicited facsimile transmission from the Defendants advertising their business. No

diversity of citizenship exists between the parties, but APB argued that the TCPA, a federal statute,

was the basis for the court’s jurisdiction. The district court dismissed the complaint, holding that

          *
        The Honorable Gregory Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 10-1325
APB Associates, Inc. v. Bronco’s Saloon

the TCPA does not confer federal-question jurisdiction. 28 U.S.C. § 1331. The court noted that the

vast majority of federal courts to address this question have held that the TCPA is not a sufficient

basis for jurisdiction under § 1331.

       Whether the district court had subject-matter jurisdiction is a question of law that we review

de novo. East Brooks Books, Inc. v. City of Memphis, 633 F.3d 459, 464 (6th Cir. 2011). The only

issue presented in this case is whether a federal court has federal-question jurisdiction to hear an

action arising under the TCPA. That question was squarely answered, after briefing was concluded,

by another panel of this court in Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 463 (6th Cir.

2010) (“[T]he district court had federal-question jurisdiction over the claims under the Telephone

Act and pendent jurisdiction over the rest of the claims.”). It is well settled that a “panel of this

[c]ourt cannot overrule the decision of another panel. The prior decision remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires modification

of the decision or this [c]ourt sitting en banc overrules the prior decision.” Salmi v. Sec’y of Health

& Human Servs., 774 F.2d 685, 689 (6th Cir.1985). We therefore REVERSE and REMAND to the

district court for further proceedings.




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