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.

Because “the FTSA unambiguously defines the type of calls that it prohibits,” and because a business loan is not a consumer good or service, Magistrate Sneed recommended that the motion be denied with respect to the FTSA claim. Magistrate Sneed did, however, grant the motion with respect to the plaintiff’s TCPA claim, finding that the allegations were sufficient to show a violation of 47 U.S.C. § 227(c)(5), which provides a private right of action to those who have placed their number on the National Do-Not-Call Registry and have received more than one call within a year, by or on behalf of the same entity, in violation of the statute and FCC regulations.

About the Author: Emanuel L. McMiller

Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients to achieve their goals and avoid disruption.

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

About the Author: Marsha J. Indych

Marsha Indych handles complex commercial litigation and arbitration matters in jurisdictions throughout the United States, focusing on consumer class actions and domestic and international business disputes. She represents clients from a broad array of industries, including the health care, financial services, media, technology and energy industries. Marsha defends leading businesses against consumer protection-based claims. She has successfully defended dozens of Telephone Consumer Protection Act (TCPA) actions, including class actions, individual actions, arbitrations and prelitigation disputes in jurisdictions across the country. Her practice includes helping clients navigate evolving — and sometimes conflicting — standards for TCPA compliance. She regularly contributes to the TCPA Blog, providing analysis about recent developments regarding the statute.