FTSA’s Application to Nonprofits Remains Unsettled as Florida’s Legislative Session Will End Without Remedial Legislation

At a Glance

  • Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
  • The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
  • The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
  • Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.

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Court Dismisses TCPA Case Due to Failure to Plausibly Allege That the Defendant Made the Calls at Issue

A recent decision out of the Eastern District of Virginia, Matthews v. Senior Life Ins. Co., provides a helpful reminder that TCPA complaints do not satisfy Rule 8’s pleading standard if they do not plausibly link the defendant to the making of the calls or texts at issue — even if there is no dispute that the calls concerned the defendant’s goods or services. No. 24-1550, 2025 WL 1181789 (E.D. Va. Apr. 22, 2025).

In Matthews, the plaintiff allegedly received three scripted telemarketing calls asking qualifying questions about life insurance offered by the defendant, Senior Life Insurance Company (SLIC). Id. at *1. The plaintiff alleged that the questions were the same each time and, during one of those calls, he was connected to and then spoke with an SLIC employee. Id.

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Tenth Circuit Finds That Invitations to Town Halls Regarding Covid-19 Triggered the TCPA’s Emergency Purposes Exception; Declines to Determine Whether a Municipality is a “Person” Under the TCPA

In a case analyzing whether invitations to town hall meetings regarding COVID-19 were exempted from liability by the TCPA’s emergency purposes exception, the Tenth Circuit declined to address whether a municipality is a “person” under the TCPA.

The case, Silver v. City of Albuquerque, — F. 4th —, 2025 WL 1173558 (10th Cir. 2025) arose from plaintiff Gerald Silver’s filing of a putative class action lawsuit alleging that the City violated the TCPA by utilizing pre-recorded phone calls to invite residents to virtual town halls regarding COVID-19. The City moved to dismiss on two grounds: first, that it was not a “person” as defined by the TCPA, and second, that its calls would be exempted from the TCPA based on its exception for calls made for emergency purposes. The District Court granted the motion on the exception argument without reaching the question of whether a municipality is a “person.” In its opinion affirming the District Court’s decision, the Tenth Circuit did the same.

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Federal Court Dismisses Lawsuit, Finding Alleged Faxes Were Not Sent to a “Telephone Facsimile Machine”

The TCPA generally prohibits the transmission of an “unsolicited advertisement” to a “telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(c). But is an “online fax service” a “telephone facsimile machine”? And can a plaintiff state a claim based on faxes that were sent to its “online fax service”? The U.S. District Court for the District of Colorado recently answered both questions in the negative. See Astro Companies, LLC v. Westfax, Inc., et al., No. 1:23-cv-02328 (D. Colo. Feb. 12, 2025).

Plaintiff Astro Companies, LLC (Astro) alleged that it is an online fax service provider that uses a fax server to convert “traditional faxes” into readable formats (such as a PDF), which are then either emailed to the recipient or made available online to be viewed (and potentially printed) at the recipient’s convenience. Astro sued multiple companies, claiming it had received “junk” faxes in violation of the TCPA. Even accepting Astro’s well-pleaded factual allegations as true, the court granted a defendant’s motion to dismiss, found Astro failed to state a claim, and, ultimately, dismissed the action with prejudice.

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District of Arizona Denies Certification of Claims Against Defendant That Had Defaulted

A TCPA defendant in Arizona federal court recently uncovered what appears to be a previously undiscovered silver-lining to a default judgment: a denial of class certification.

In Heidarpour v. Secured Mktg. Concepts Corp., 2025 WL 764287, at *1 (D. Ariz. Mar. 11, 2025), the plaintiff brought a putative TCPA class action for alleged telemarketing calls that were placed without the prior express written consent of call recipients. When the defendant failed to appear, the plaintiff moved simultaneously for default judgment and class certification. The court denied class certification, explaining that “even if permissible, certifying a class when a defendant is in default may not be prudent.” Id. at *2.

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Seventh Circuit Affirms Summary Judgment and Adopts Narrow Interpretation of “Telephone Solicitations”

The Seventh Circuit recently affirmed entry of summary judgment against a TCPA plaintiff and adopted the Eastern District of Wisconsin’s interpretation of the phrase “telephone solicitations.” Hulce v. Zipongo, Inc., — F. 4th —, 2025 WL 829603 (7th Cir. 2025). The Seventh Circuit held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” The Hulce plaintiff could not meet this standard because the services at issue were offered to him free of charge. The decision solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years.

James Hulce, a Wisconsin resident who received his health care through Medicaid, opted to enroll in Chorus Community Healthcare Plans (CCHP). CCHP, in turn, contracted with Defendant Zipongo, Inc. (d/b/a Foodsmart) to advertise nutritional consultations to its members. The consultations were offered to members at no cost. Hulce alleged that he received approximately twenty calls and text messages from Foodsmart despite his registration on the national do-not-call list and his requests for further communications to cease.

The central issue at summary judgment was whether the word “encouraging” as used in the TCPA’s definition of “telephone solicitation” (47 U.S.C. § 227(a)(4)) means to “persuade” or “urge,” as Foodsmart argued, or merely to make a purchase “more likely to happen.”

Ultimately, the Seventh Circuit held that one “cannot separate the encouragement element from the purchasing element.” The court reasoned that “[a] straightforward conclusion flows from this interpretation.” Specifically, the court held that “Foodsmart’s calls [did] not fall within the definition of ‘telephone solicitation’ because Foodsmart did not initiate them with the purpose of persuading or urging anyone to pay for its services.” The court held that “a ‘telephone solicitation’ requires that the call or message be initiated with the purpose of persuading or urging someone to pay for property, goods, or services.” Although “Foodsmart’s purpose was to encourage Hulce to use its services, its purpose could not have been to encourage Hulce to pay for services that were free to him.” Therefore, the Seventh Circuit affirmed the district court’s order granting summary judgment against Hulce.

This ruling is the first of its kind from a U.S. Court of Appeals, and it solidifies an interpretation of “telephone solicitation” that has emerged in various district courts over the past few years. Despite the favorable outcome, the Seventh Circuit cautioned parties not to “overread” the “decision to create a sweeping loophole within the prohibition of telephone solicitations.” Businesses offering free goods or services now have another defense against frivolous TCPA claims but they should be sure to consult with counsel given the ever-changing landscape of TCPA law.

Whirlwind of Activity Ends With Eleventh Circuit Invalidating FCC’s Lead Generation Rule

Our regular readers will no doubt be familiar with the one-to-one-consent and logically-and-topically-related requirements the FCC (under the prior administration) had tried to impose as a way to close what it had described as a “lead generator loophole.” On Friday, the FCC (now under a new administration) postponed the effective date of the rule, the validity of which was still being reviewed by the Eleventh Circuit Court of Appeals. Later that day, the Eleventh Circuit issued its ruling in that appeal, finding that the rule is invalid. As a result, in the absence of further appellate review of that ruling, the proposed rule is no more.

The Eleventh Circuit’s decision should be read by anyone who litigates in this space, or indeed in any space where alleged liability is premised on supposed violations of federal or state regulations. The main question on appeal was whether the FCC had statutory authority to impose the new one-to-one-consent and logically-and-topically-related requirements. The Eleventh Circuit found that it did not, as the FCC only has statutory authority to “implement” the TCPA, and the plain language of the TCPA “requires only ‘prior express consent’ — not ‘prior express consent’ plus.” Opinion at 14. As the Eleventh Circuit explained, “implement” means “to complete,” “perform” and “carry into effect,” not to “alter.” Id.

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Python Bites Back: Counterclaims Based on Alleged Consent Survive Plaintiff’s Motion to Dismiss

TCPA defendants often assert, in either a motion to dismiss or answer (or both), that a plaintiff gave prior express consent to receive the calls or text messages at issue. But it is the exceptional case where a defendant actually files a counterclaim against a plaintiff on this ground. Rarer still is the case where a plaintiff then moves to dismiss that counterclaim. This series of events is precisely what occurred, however, in Estrada v. Aragon Advertising, LLC, et al., No. 4:23-3407, 2024 WL 5059166 (S.D. Tex. Dec. 10, 2024).

Plaintiff Nelson Estrada (Plaintiff) filed a putative class action claiming TCPA violations by Defendants Aragon Advertising, LLC (Aragon) and Python Leads, LLC (Python) (collectively, “Defendants”). Plaintiff alleged that Aragon bought leads from lead generators, including Python, to obtain consumer contact information, and then Defendants made prerecorded telemarketing calls to people who had never consented, had no established business relationship with Defendants, and/or had placed their numbers on the national do-not-call registry.

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Federal Court Dismisses Action for Lack of Personal Jurisdiction Due to Insufficient Agency Relationship

A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.

In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.

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N.C. Federal Court Casts Doubt on Extraterritorial Reach of State Telemarketing Statute

The Middle District of North Carolina recently denied, in part, a motion seeking dismissal of serial TCPA plaintiff Craig Cunningham’s complaint alleging violations of the TCPA and the North Carolina Telephone Solicitations Act (NCTSA). See Cunningham v. Wallace & Graham, P.A., et al., No. 1:24-cv-00221 (M.D.N.C. Nov. 19, 2024). The court suggested that the NCTSA probably does not apply extraterritorially but ultimately denied defendants’ motion to dismiss the NCTSA claim because the parties did not brief the issue.

In Wallace & Graham, plaintiff alleged that he received initial calls from an agent of Sokolove Law, LLC (Sokolove), asking if he was interested in pursuing a claim against the government for toxic exposures that occurred at Marine Corps Base Camp Lejeune (despite the fact that plaintiff allegedly never worked at Camp Lejeune).

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