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Last month, Florida governor Ron DeSantis signed into law amendments to the Florida Telephone Solicitation Act (FTSA) that scale back the scope and reach of the statute, bringing it in line with federal TCPA standards and providing needed comfort to good faith marketing companies operating in Florida.

Since the last statutory changes in July 2021, the FTSA has severely impacted telemarketing and text marketing businesses marketing to Florida residents and otherwise conducting business in the state. Like the federal Telephone Consumer Protection Act (TCPA), the FTSA prohibits using automated dialers to call or text consumers without their consent.

The Florida law also enables consumers to recover $500 per call and provides for up to $1,500 in treble damages for willful or knowing violations, plus reasonable attorney’s fees and costs. To date, the FTSA has also had much more lenient standards for bringing a claim, resulting in Florida being a hotbed of state-level litigation in the area.…

Continue Reading Florida Adopts Changes to the Florida Telephone Solicitation Act

Last week, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking proposing to “ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.”

According to the FCC, the proposed rule’s intent is to prevent lead generators from obtaining consent to receive calls and texts from multiple “partner companies” identified through a hyperlink rather than on the same page where consent is obtained. Implementing this rule could drastically change the way lead generators obtain consent for marketing calls and texts under the Telephone Consumer Protection Act (TCPA).…

Continue Reading FCC Proposes Rule to “Close the Lead Generator Loophole,” with Business-Changing Ramifications

Last week, a magistrate judge in U.S. District Court for the Western District of North Carolina dismissed a Telephone Consumer Protection Act (TCPA) lawsuit brought by a plaintiff who claimed calls made by an insurance lead generator to her cell phone number, which was registered on the national Do Not Call (DNC) registry, were unlawful. The decision takes a view contrary to that of at least one other district court in the Fourth Circuit, but sides with a district court in Texas in finding that the do not call prohibitions of the TCPA do not encompass cell phones.

Does this latest decision, Gaker v. Q3M Insurance Solutions et al., mean that telemarketing calls to cellphone numbers listed on the national DNC list are actually OK? Probably not. For starters, since 2003, the Federal Communications Commission (FCC) has allowed cell phone numbers to be registered on the DNC list and interpreted the TCPA’s do-not-call prohibitions to encompass cell phone numbers. Other courts have followed the FCC’s lead in this matter. However, the judge’s reasoning in the Gaker case is interesting to consider, particularly for anyone following a textualist reading of Congress’s laws.…

Continue Reading North Carolina Judge Says Cell Phones Not Subject to Federal Do-Not-Call Protections

For years, lead generators have obtained telephone numbers for their clients to call by obtaining the consumer’s consent to receive calls from certain entities specifically identified by the lead generator. A typical model uses language that asks for the consumer’s consent, via a checkbox or otherwise, to receive marketing calls from a few of the lead generator’s marketing partners named in the consent request.

A popular variation of this model is to include, instead of a list of partners by name, a clickable reference to “marketing partners” in the consent language. The specific marketing partners are visible only when the consumer clicks the link and views whatever list of marketing partner names the lead generator has provided.

Sometimes, the marketing partners list has several dozens, hundreds, or thousands of names.  With such long lists, one might ask: How many names on the marketing partners list is too many to evidence meaningful consent by the consumer to receive calls or texts? As recently declared by the Federal Communications Commission (FCC), the answer is 5,329.  As a practical matter, the number might be a whole lot less.…

Continue Reading Telemarketing Lead Generators: How Many “Marketing Partners” Is Too Many?

Everyone remember that Alvarez v. Sunshine Life & Health Advisors LLC putative Florida Telephone Solicitation Act (FTSA) litigation we’ve covered? You know, the one where the plaintiff’s counsel argued that the FTSA extends to text messages, whereas its federal counterpart, the Telephone Consumer Protection Act (TCPA), “doesn’t even regulate text messages”?  It’s the case where…

On Monday July 6, 2020, the U.S. Supreme Court issued its long-awaited decision in Barr v. American Association of Political Consultants, Inc., in which a majority of the Court struck down and severed the 2015 Government Debt Exception (the Exception) to the 1991 Telephone Consumer Protection Act (TCPA) but held that the balance of the TCPA was constitutional.

First, as oral argument in May indicated, the Court was brief in striking down the Exception as unconstitutional.  A plurality of opinions found that the Exception was a content-based restriction that violated the First Amendment.  The majority opinion, authored by Justice Kavanaugh and joined by Chief Justice Roberts, Justice Alito, and Justice Thomas, found the government’s arguments that the Exception was not content-based unpersuasive, but, instead, relied upon the Exception’s text, drawing a distinction based on the message a speaker is permitted to convey: “A robocall that says, ‘Please pay your government debt’ is legal.  A robocall that says ‘Please donate to our political campaign’ is illegal.  Because the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech.”  Given that the government conceded that it could not satisfy strict scrutiny for a content-based restriction, the majority struck down the Exception as unconstitutional.…

Continue Reading Delicate Surgery: Supreme Court Upholds the TCPA but Strikes Down the Government Debt Exception as Unconstitutional in Barr v. AAPC

The midterm elections are just around the corner, and with them could come a host of potential Telephone Consumer Protection Act (“TCPA”) concerns if recent history is any indication.  The TCPA places restrictions on, among other things, robocalls and automated text messages, both of which often are used by political campaigns seeking votes or donations.  Less clear is whether the TCPA actually applies to political campaigns’ calling and texting operations.

The FCC has asserted that the TCPA covers campaign calls according to the Act’s plain language.  But the FCC’s guidance isn’t necessarily heeded by campaigns, as shown by the different treatment of the issue in two recent articles.  One describes the proliferation of robocalls in NYC elections and depicts political campaigns’ actions as politically protected speech that is exempt from the TCPA, directly contradicting the FCC’s stance on the matter.  The other concerns the same scenario in Hickory, NC’s mayoral election, but acknowledges that a campaign’s robocalls may have been TCPA violations, with officials blaming North Carolina election law for the lack of guidance.
Continue Reading One Vote for a TCPA Violation? Campaign Robocalls During Recent Elections Draw Ire

In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used.  As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and money in potential litigation. We have blogged previously about TCPA autodialers cases (here, here, and here).

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used. …
Continue Reading Pause, Clicking, and Dead Air – TCPA Autodialers as a Story about Nothing

Imagine a situation where a person purchases a $74,999 foreign car without test-driving it first, only to receive it and find that the engine is missing, rendering the car nearly valueless.  Now also imagine a person who answers a call on her cell phone, hears a prerecorded message offering her a free vacation package opportunity, and hangs up a few seconds later.  Right now, only one of these people can file a suit in federal court but it’s not the guy who bought the car.

The United States Supreme Court heard oral arguments in Spokeo Inc. v. Robins, No. 13-1339 earlier this month, a case with huge implications for Telephone Consumer Protection Act (“TCPA”) actions and other claims based on laws providing for statutory damages.  The question before the Court is simple: can Congress give a plaintiff who suffers no concrete harm Article III standing by authorizing a private right of action based on a bare violation of a federal statute that provides for statutory damages, such as the TCPA, Fair Debt Collection Practices Act (“FDCPA”), or Fair Credit Reporting Act (“FCRA”).…

Continue Reading Will Plaintiffs Have a Leg to Stand On?: The Supreme Court Considers Whether Statutory Damages Constitute Article III Standing

On October 27, 2015, the Missouri Attorney General filed a lawsuit against two telemarketing companies that solicit donations on behalf of charitable organizations in the state, and against the companies’ co-owners.  Regular readers of this blog know that these have been very eventful times for telemarketers, as the U.S. Supreme Court considers the breadth of relief to which a plaintiff is entitled under the Telephone Consumer Protection Act (“TCPA”), other federal courts opine on the definition of an “autodialer,” and the Federal Communications Commission releases consumer complaint data weekly.

Missouri’s action is not simply an example of piling-on: it is a stark reminder that telemarketers who work for nonprofit organizations must still comply with many of the TCPA’s provisions (as well as those of the TCPA’s cousin, the Telemarketing Sales Rule (TSR)).  Some businesses that operate in the nonprofit sector – particularly the charity sector – believe that laws impacting the commercial industry do not similarly apply to them; this can be a costly mistake. …
Continue Reading “Show Me” State Shows No Mercy: Missouri AG Files Suit Against Charity Telemarketers