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Legislature Poised to Overhaul Florida’s mini-TCPA

The Florida Legislature is moving quickly to pass significant remedial amendments to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) before the end of the legislative session this Friday.  Should the proposed amendments succeed, they would restrict the scope and substance of the statute in several important ways.

First, the amendments would narrow the categories of equipment that are covered by the statute.  Whereas the current autodialing restrictions apply to “automated system[s] for the selection or dialing of telephone numbers,” the amended autodialing restrictions would apply only to “automated system[s] for the selection and dialing of telephone numbers” (emphasis added). Note, however, that even the amended version would restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

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Texas District Court Rejects “Influence Liability” Workaround to FCC Exemption for Research and Surveys

A recent decision from the U.S. District Court for the Northern District of Texas reaffirms the FCC’s interpretation that calls and text messages regarding consumer surveys and other market research do not qualify as restricted “telephone solicitations” or “telemarketing” under the TCPA or its implementing regulations.  Although the outcome in this case is a positive development, organizations that engage in these types of communications should continue to monitor and assess the state of the law in other jurisdictions.

In Hunsinger v. Dynata LLC, the plaintiff was a serial pro se TCPA litigant whose phone number was registered on the FCC’s national do-not-call list at all relevant times.  No. 22-cv-136-G-BT, 2023 WL 2377481, at *1 (N.D. Tex. Feb. 7, 2023).  Mr. Hunsinger alleged that he received a single call from an unidentified caller asking him to visit Dynata’s website.  Id.  Hunsinger thereafter sent a letter demanding a copy of Dynata’s DNC policy, but Dynata declined and argued that Hunsinger had no legal basis for his demand.  Id.  Hunsinger claimed that he directed Dynata to place his number on its internal DNC list but that he subsequently received a single SMS text message that contained a link to another website affiliated with Dynata.  Id. at *2.

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Florida Court Finds One Unwanted Text Message Does Not Cause Concrete Harm, Remands FTSA Case to State Court

In Weitz v. Genting New World LLC, No. 1:22-cv-23209-BLOOM, 2023 WL 2328365, at *1 (S.D. Fla. Mar. 2, 2023), Plaintiff Brandon Weitz brought suit against Defendant Genting New World LLC on behalf of himself and a putative class in Florida state court, alleging violations of the Florida Telephone Solicitation Act (“FTSA”).  Defendant removed the case to the United States District Court for the Southern District of Florida.  Id.

Sometimes dubbed Florida’s “Mini-TCPA,” the FTSA regulates telemarketing activities within Florida.  The law was designed to protect consumers from unwanted telemarketing calls and ensure that telemarketers comply with certain rules and regulations.  The FTSA prohibits certain acts, such as calling individuals who are on the National Do Not Call Registry, using automatic dialing systems to call emergency phone numbers, and using pre-recorded messages without prior consent.

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Established Business Relationship Defense Dooms Class Allegations

The Northern District of Illinois recently granted a TCPA defendant’s motion to strike class action allegations, reasoning that individual questions of consent and the availability of the established business relationship (“EBR”) defense made the claims unsuitable for class treatment.  The case is Sorsby v. TruGreen L.P., 2023 WL 130505 (N.D. Ill. Jan. 9, 2023).

The plaintiff alleged that, after cancelling her TruGreen lawn-care service and telling TruGreen not to call her, she received numerous calls from TruGreen to a number that was on the National Do-Not-Call Registry and should have been on TruGreen’s internal Do-Not-Call list.  TruGreen moved to strike the class allegations, arguing that plaintiff could not satisfy Rule 23’s requirements of typicality, commonality, and predominance.  The court agreed and struck the class allegations.

The court explained that the TCPA does not prohibit solicitations to customers with whom a business has an EBR.  Although the named plaintiff claimed to have terminated her own EBR, the availability of the EBR defense as to other class members was inherently individualized and not capable of being determined on a classwide basis.

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Conflicting Decisions Illustrate Uncertainty as to Whether TCPA Extends to Text Messages

Two recent District Court opinions highlight an ongoing dispute as to whether the TCPA and its implementing regulations should apply to mobile (cellular) phones and text messages received thereon, as opposed to the more limited application of only traditional residential landlines.

The District Court for the Western District of Missouri recently denied a defendant’s motion to dismiss a TCPA claim, holding, among other things, that 47 C.F.R. § 64.1200(d) broadly applies to text messages just as it applies to telephone calls.  Eagle v. GVG Capital, LLC, No. 22-cv-00638-SRB, 2023 WL 1415615 (W.D. Mo. Jan. 31, 2023).  47 C.F.R. § 64.1200(d) protects consumers from receiving unsolicited telemarketing calls, stating that no person or entity may make such calls to a residential telephone subscriber unless procedures are put in place to maintain a list of those who request not to be contacted that meet a set of minimum standards.  See 47 C.F.R. § 64.1200(d).

In Eagle, the plaintiff sued Defendant GVG Capital, LLC, a marketing and lead generation company, on behalf of herself and three classes alleging multiple TCPA violations, including the delivery of solicitation text messages to the class despite their telephone numbers being on the National Do Not Call Registry (NDNCR) and alleging that those text messages did not include the sending defendant’s contact information.  The plaintiff alleged that she uses her cellphone as her residential telephone number and had it registered with the NDNCR in 2012.  In 2022, she began receiving text messages from a series of numbers asking if she was interested in selling her home and directing her to a real estate website, and plaintiff alleged that these messages did not contain the required contact information and disclosures prescribed by the TCPA.

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The Eleventh Circuit’s Minority View of Article III Results in Dismissal of Another TCPA Case

The District Court for the Southern District of Florida recently dismissed a TCPA lawsuit for lack of Article III standing, holding that five unsolicited text messages did not constitute a concrete injury.  Muccio v. Global Motivation, Inc., __ F. Supp. 3d __, 2022 WL 17969922 (S.D. Fla. Dec. 27, 2022).  In so doing, the court applied the Eleventh Circuit precedent in Salcedo v. Hanna, which held that a single, unsolicited text message did not itself constitute a concrete injury.

In Muccio, the plaintiffs alleged receiving five unsolicited text messages from defendant Global Motivation, Inc.  The complaint alleged that the text messages did not include the ability to opt-out of future messaging and failed to identify the name of the sender or include the sender’s contact information.  The court decided the motion on Article III standing.  The mere existence of a statutory right, the court explained, even if violated, does not excuse the need for a plaintiff to allege a concrete injury.  The complaint, however, merely sought to redress “inconvenience, invasion of privacy, annoyance, and violation of their statutory rights.”  Applying the rule set forth in Salcedo v. Hanna, the Muccio court dismissed the suit without prejudice for failure to allege a concrete injury.

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FCC Acts on Pending Reconsideration Petitions of its 2020 TCPA Exemptions Order

The Telephone Consumer Protection Act of 1991 (TCPA) restricts many types of calls to residential and wireless telephone numbers if they are made without the prior express consent of the called party or a statutory exemption applies, but the statute authorizes the FCC to exempt certain calls from these restrictions.  In 2020, the FCC in its TCPA Exemptions Order adopted measures to implement the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).  The TRACED Act required that the FCC ensure that any exemption to TCPA prior express consent that the FCC grants under section 227(b)(2)(B) or (C) of the Communications Act, allowing callers to make artificial voice, prerecorded voice, or autodialed calls without prior consent, include certain conditions.  Specifically section 8(a) of the TRACED Act requires that any exemption contain requirements with respect to:  “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.”  The FCC in 2020 determined it would limit the number of exempted calls that can be made to residential phone lines; require that callers making exempt calls allow consumers to opt out of receiving future exempt calls; and codify existing FCC exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers.

Specifically, the FCC limited the number of exempted calls that can be made to a residential line to three artificial or prerecorded voice calls within any consecutive 30-day period for three types of exemptions (for non-commercial calls, commercial calls that do not constitute telemarketing, and calls by tax-exempt nonprofit organizations).  For exempted HIPAA-related calls, the FCC amended its rules to limit the number of calls that can be made to a residential line to one artificial or prerecorded voice call per day, up to a maximum of three artificial or prerecorded voice calls per week.  This healthcare call limitation is the same as that already imposed on healthcare calls to wireless numbers.

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