Today marks ten years and counting of the FCC’s revised TCPA rules—and, not coincidentally, of this blog. Over the last decade, more than 50 contributors have shared more than 500 posts about the statute’s restrictions, the FCC’s rules and regulations, the states’ enactment of so-called “mini” TCPAs, and the many twists and turns in the seemingly endless stream of litigation—much of it concocted by a colorful cast of recurring characters—arising under all of them. We have enjoyed sharing our insights and meeting our readers, and we can’t wait to see what the next ten years will bring.
Michael Daly
Articles by Michael Daly:
Ninth Circuit “Voices” Its Rejection of Plaintiff’s Attempt to Expand TCPA
The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA. See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug. 8, 2023).
There, the plaintiff alleged that the defendant had violated the TCPA by sending text messages with promotional offers without her consent. Specifically, she alleged that the defendant had sent her a message stating: “Hiya Lucine, you are a valuable customer. In these tough times, let us [] reimburse [you] for your shopping needs.”
As you may recall, the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a [ ] cellular telephone service. . . .” 47 U.S.C. § 227(b)(1)(A)(iii).
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Ninth Circuit Finds That One Text Can Cause Concrete Harm, Remands for Decision Regarding Whether Minors Can Consent
Ever since the Supreme Court confirmed that the TCPA’s autodialer restrictions apply only to devices that generate numbers randomly or sequentially, the plaintiffs’ bar has been digging deep for new theories of liability to fill the void. One example of that is Hall v. Smosh Dot Com, in which the plaintiff posits that minors cannot provide consent for purposes of the TCPA, and as a result that calls to minors with DNC-registered numbers necessarily violate the statute. That theory is hard to square with both tort law (which tells us that minors consent to more intrusive things all the time) and contract law (which tells us that contracts with minors are voidable rather than void). But the Ninth Circuit recently handed Hall a procedural win in the case—albeit one that should end up being Pyrrhic.
The case arises from five text messages sent over the course of seven months. Undeterred by the fact that her teenage son had requested the messages, the Plaintiff filed suit—in a class action, of course—under the TCPA’s DNC provisions. See 47 U.S.C. § 227(c)(5). The trial court dismissed the case for lack of Article III standing, finding that the Plaintiff had failed to allege that she was either the “actual user” of the phone or the “actual recipient” of the messages. The Plaintiff appealed, arguing that she could have Article III standing even if she was neither of those things. The Ninth Circuit has now agreed, reversed the trial court, and remanded for further proceedings consistent with its opinion.
Florida Governor Signs FTSA Amendments Into Law
Yesterday, Florida’s Governor signed HB 761, which makes significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059).
HB 761 states that these amendments will not only take effect immediately, but also apply retroactively to any pending FTSA action styled as a class action but was not certified as such before the Governor signed the law. But there are already signs that the law’s retroactivity provision will face challenges, including one court’s recent observation that the constitutionality of that particular provision is unclear. See Murray v. Riders Share, Inc., No. 6:22-cv-2329-PGB-DCI, 2023 U.S. Dist. LEXIS 83388, at *3 n.2 (M.D. Fla. May 12, 2023) (“Retroactive application of a civil statute ordinarily transgresses constitutional limitations on legislative power ‘if the statute impairs vested rights, creates new obligations, or imposes new penalties.’”).
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Florida Appeals Court Finds Lack of Standing in State Court TCPA Case
Florida’s Third District Court of Appeal recently reversed class certification and directed dismissal, holding that the plaintiff had failed to establish any concrete harm from an alleged violation of the TCPA and thereby lacked standing. Pet Supermarket, Inc. v. Eldridge, No. 3D21-1174, 2023 WL 3327267 (3d Fla. Dist. Ct. App. May 10, 2023). (Note that this opinion has yet to be released for publication in the permanent law reports, as a motion for rehearing, clarification, or certification, or a petition for review, may be pending.)
Eldridge had visited the defendant’s store, where he learned about a promotion in which customers could win free dog food for a year if they enrolled in the defendant’s text-message program. After enrolling, Eldridge immediately received two texts, and then received an additional five texts over a period of six months. All the texts contained the message “Reply STOP to end” and concerned promotional or advertisement information.
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Florida District Courts Increasingly Staying FTSA Cases as 11th Circuit Threatens to Overturn Salcedo
Plaintiffs’ attempts to keep FTSA cases venued in Florida state courts are being upended by the Eleventh Circuit’s recent decision to revisit en banc its Article III standing precedent in single-text message cases. Previously, Florida district courts were generally remanding such cases to state court. Since then, a couple of district courts have remanded cases to state court, but several more have stayed cases pending the Eleventh Circuit’s decisions in two pending appeals, Drazen v. Pinto, No. 21-10199 (11th Cir.) and Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir.). And the momentum appears to be in favor of staying such cases.
On April 11, Judge Honeywell of the Middle District of Florida granted a defendant’s unopposed motion to stay in Read v. Coty DTC Holdings, LLC, pending the resolution of Drazen and Muccio. No. 8:23-cv-00662-CEH-MRM, 2023 WL 3431820 (M.D. Fla. Apr. 11, 2023). The plaintiff in Read had alleged receipt of a single text message in violation of the FTSA. Eleventh Circuit precedent on Article III standing holds that a plaintiff’s alleged receipt of a single unsolicited text message in violation of the TCPA does not meet the injury requirement for Article III standing. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). However, the Eleventh Circuit recently vacated a panel decision that had reaffirmed that precedent to re-evaluate its application en banc. See Drazen. Additionally, another appeal before the Eleventh Circuit will address whether Article III injury exists for plaintiffs alleging receipt of multiple texts, not just one, and who allege a violation of the FTSA, not the TCPA. See Muccio. Against this backdrop, the Read court found that the Eleventh Circuit was an outlier with the holdings of other Courts of Appeal that have found standing does exist based on an unsolicited text message. Additionally, the court noted that the Eleventh Circuit’s precedent on this issue appears to have been called into question due to the pending appeals in Drazen and Muccio. As such, the court stayed the case.
Eastern District of Pennsylvania Holds That Differentiating Service Is an “Advertisement” and Defendant’s Intent in Sending Fax Is Irrelevant
The Eastern District of Pennsylvania recently reaffirmed that an objective “four corners” standard governs whether faxes are “advertisements” that must meet the TCPA’s consent requirement. Separately, any fax that compares the sender’s product or service to others could constitute an “advertisement” under the Court’s decision.
Background
In Steven A. Conner DPM, P.C. v. Fox Rehabilitation Services, P.C., 2023 WL 2226781 (E.D. Pa. Feb. 24, 2023), Plaintiff (a podiatrist) alleged that Defendant sent unsolicited faxes to his office during the onset of the COVID-19 pandemic to promote its in-home physical therapy services. Plaintiff had never had contact with or made a referral to Fox Rehab before receiving the faxes. Fox Rehab testified at trial that it had sent the faxes to Plaintiff as part of a blast campaign to inform referring healthcare providers that it was adhering to recently issued public guidelines for stemming the spread of coronavirus. Since Fox Rehab admitted to having sent the faxes, the sole issue for the Court was whether they were “unsolicited advertisements” under the TCPA.
Florida Senate Approves House Amendments to mini-TCPA
The Florida Senate passed HB 761 late yesterday by a 29-10 vote, less than a week after the bill sailed through the Florida House by a 99-14 vote. As we previously reported, passage of this bill paves the way for significant changes to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059). The bill must now be presented to the Florida Governor, who will have up to 15 days following presentment to sign or veto the bill. See Fla. Const., Art. III, § 8(a).
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FTSA Does Not Apply to Calls Selling Services to Businesses
The Middle District of Florida partially rejected a plaintiff’s motion for entry of final default judgment in Brown v. Care Front Funding, No. 8:22-cv-02408-VMC-JSS, 2023 U.S. Dist. LEXIS 60879 (M.D. Fla. Apr. 6, 2023), report and recommendation adopted, 2023 U.S. Dist. LEXIS 72933 (M.D. Fla. Apr. 26, 2023).
The plaintiff alleged that, despite being placed on the National Do-Not-Call Registry, she received three unsolicited calls from the defendant for the purpose of persuading her to obtain a business loan. After the defendant failed to respond to her complaint, the plaintiff moved for entry of default and then entry of default judgment. Magistrate Sneed found that the plaintiff had failed to allege that the calls were made for the solicitation of a sale of or extension of credit for any “consumer goods or services” for purposes of finding liability under the FTSA. The statute defines “consumer goods or services” as “real property or tangible or intangible personal property that is normally used for personal, family or household purposes . . . and any services related to such property.” Fla. Stat. § 501.059(1)(c). Magistrate Sneed noted that courts have interpreted similar statutes that provide for “consumer” protections related to goods and services that are primarily for personal, family, or household purposes to exclude goods and services in the business context.
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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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