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
Washington State and New York Join the State Telemarketing Law Amendment Fray
As readers of this blog know, several states recently amended (or attempted to amend) their telemarketing laws, especially as they relate to regulating autodialers. While they don’t affect autodialing, telemarketers should take notice of the amendments to Washington state’s telemarketing statutes (available here), which go into effect June 9. And both houses of the New York General Assembly have passed a bill amending its Do Not Call Law (although it has not yet been signed by the governor).
About a week ago, Oklahoma passed its Telephone Solicitation Act of 2022, which goes into effect at the beginning of November. The Oklahoma law is patterned after the Florida Telephone Solicitation Act (FTSA), which was amended in July 2021 to allow for a private right of action. After the July 2021 FTSA amendments went into effect, hundreds of class actions were filed alleging violations of Florida’s law, prompting the Florida legislature to volley about several additional proposed amendments earlier this year. However, in March 2022, at the end of the legislative session, the various proposed FTSA amendments were “indefinitely postponed and withdrawn from consideration.” At least for the time being . . .
Back to Washington and New York. There are several changes to those states’ laws that are of importance to telemarketers. Washington’s amendments include, among other things:…
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New Oklahoma Telephone Solicitation Act Is Not OK – But It Does Contain an Important Exemption
Late last week, Oklahoma Governor Kevin Stitt signed the state’s Telephone Solicitation Act of 2022 (OTSA) into law.
A couple of months ago, as the legislation was working its way through the Oklahoma state legislature, we noted that, like its Florida counterpart – the Florida Telephone Solicitation Act (FTSA) – the law would prohibit “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.)
The OTSA maintains the above-identified autodialer prohibition but, like the FTSA, fails to define what an “automated system for the selection or dialing of telephone numbers” actually is. And, just as with the Florida law, the Oklahoma statute creates a rebuttable presumption that any call or text message to a phone number with an Oklahoma area code is made to an Oklahoma resident or person physically present in the state at the time of receipt. The statute allows for private enforcement and provides for uncapped statutory damages of $500 per violation (potentially tripled if the violation is deemed to be willful or knowing). The law goes into effect on November 1, 2022, likely triggering waves of autodialer litigation.…
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Generating Leads Legally: Regulatory and Litigation Quick Hits
Venable hosted another jam-packed session on the regulatory and litigation risks facing the lead generation industry today, and strategies for mitigating them. In the webinar, Daniel Blynn, Alexandra Megaris, and Jonathan Pompan covered federal and state law enforcement priorities; TCPA, legislative, licensing, and regulatory developments; and more.
- Dive into federal and
FTC’s Spring Open Meeting Brings Potential Rule Changes and Plea to Congress
The FTC held its most recent open meeting on Thursday, and two major topics were front and center: potential changes to the Telemarketing Sales Rule (TSR) and a congressional fix to Section 13(b) after the one-year anniversary of AMG Capital Management LLC v. FTC.
In its first order of business, the Commission unanimously voted to publish a Notice of Proposed Rulemaking (NPR) and an Advance Notice of Proposed Rulemaking (ANPR), which address several proposed updates to the TSR. The NPR is further along in the rulemaking process, where it seeks comment on the published proposed rule.…
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“Indefinitely Postponed and Withdrawn From Consideration”: Florida Telephone Solicitation Act Amendments Wait for Another Day
We’ve previously detailed the problem with the Florida Telephone Solicitation Act (FTSA), which, on its face, expansively prohibits the use of “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without the recipient’s prior express written consent. Fla. Stat. § 501.059(8)(a) (emphasis added).
Thus, arguably, even if a live human manually presses each digit in a ten-digit telephone number to place a telemarketing call or to send a marketing text message, if a system automatically selected those numbers for the representative to dial, it might be considered “autodialing” under the FTSA. (We have our doubts but, then again, no one refers to us as “Judges Blynn and Rinehart” . . . yet(?).) By comparison, the federal Telephone Consumer Protection Act’s (TCPA) definition is more restrictive and industry-favorable, requiring that telephone numbers be randomly or sequentially generated and called without human involvement. Dialing from a stored list of telephone numbers is not autodialing under the TCPA, as long as those numbers themselves are not pulled out of thin air.…
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First Florida Telephone Solicitation Act Dismissal Decision Issues, and It Has Virtually Nothing to Do with the Statute
There have been scores of Florida Telephone Solicitation Act (FTSA) class actions filed since July 1, 2021, when the statute was amended to provide for a private right of action; the Florida legislature thinks that number may be more than 100. As might be expected, there are a number of motions to dismiss pending in FTSA litigations. Many make arguments regarding the constitutionality of the statute and/or that the law is preempted by its federal counterpart (the Telephone Consumer Protection Act (TCPA)). A couple of defendants also have argued lack of standing, i.e., that the receipt of one or two allegedly unsolicited, autodialed text messages does not constitute a sufficiently concrete injury to confer standing on the plaintiff.
Continue Reading First Florida Telephone Solicitation Act Dismissal Decision Issues, and It Has Virtually Nothing to Do with the Statute
Did a Prolific TCPA Plaintiffs’ Attorney Just Argue That the Statute Does Not Regulate Text Messaging? The Hearing Transcript Says Yes
For years, the plaintiffs’ bar has been filing Telephone Consumer Protection Act (TCPA) class actions alleging the receipt of unsolicited, autodialed text messages. But the TCPA’s autodialer prohibition explicitly refers to “calls,” not text messages, whereas other provisions of the statute, namely the Truth in Caller ID Act, expressly extend to both “text messaging service[s].” In fact, that section of the TCPA even includes a definition for “text message.”
Nonetheless, based on dicta from a decade-old Supreme Court decision addressing whether federal courts have concurrent jurisdiction with state courts over TCPA claims, Mims v. Arrow Financial Services, LLC, the plaintiffs’ bar regularly includes in its autodialer complaints an allegation that text messages are calls for purposes of applying and construing the TCPA. During the December 2020 oral argument before the Supreme Court in Facebook, Inc. v. Duguid, Justice Clarence Thomas questioned “why a text message is considered a call under the TCPA” in the first place. But the issue was not before the Supreme Court; nor did the Court address it in its decision.
So, text messages still are generally considered to be “calls” under the TCPA subject to its autodialer prohibition. But, remarkably, just two weeks ago in Alvarez v. Sunshine Life & Health Advisors LLC, a putative Florida Telephone Solicitation Act (FTSA) autodialer class action arising out of the plaintiff’s receipt of a single text message (maybe two, depending on how the complaint is construed), the plaintiff’s counsel the position that the TCPA and FTSA are different in that the FTSA covers text messaging, whereas the TCPA does not.…
Continue Reading Did a Prolific TCPA Plaintiffs’ Attorney Just Argue That the Statute Does Not Regulate Text Messaging? The Hearing Transcript Says Yes
Oklahoma Proposed Autodialer Legislation Would Cause Litigation to Come Sweepin’ Down the Plain
Musical Theater was one of my favorite elective courses in high school, probably because a fair amount of the curriculum involved watching musicals on television. (Kids today will never feel the absolute exuberation from seeing a VCR cart being rolled through the classroom door.) One of the catchiest tunes I remember was the main title track from Rodgers & Hammerstein’s classic, Oklahoma!
A recent bill introduced in the Oklahoma state legislature has me humming that tune, though I’m not so sure the “wavin’ wheat,” which “can sure smell sweet when the wind comes right behind the rain” will be able to mask the stench rising from the influx of telemarketing litigation that surely will be filed in the state, should the bill as proposed actually become law.
Oklahoma House Bill 3168 (which is available here), as currently drafted, prohibits “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.) The disjunctive “selection or dialing” term is the same as the one employed in the current version of the Florida Telephone Solicitation Act (FTSA), which we’ve blogged about previously here.…
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Florida Legislature to the Rescue? House Bill Proposed to Fix the Florida Telephone Solicitation Act’s Autodialer Provision
The Florida legislature gaveth (to the telemarketing plaintiffs’ bar) in July 2021 when it amended the Florida Telephone Solicitation Act (FTSA). That same state legislature might now taketh away and cure some of the class action abuses its amendments have created.
Last month, in the context of a deep dive into the legislative history of the FTSA, we previewed a major source of ambiguity in the statute that was exacerbated in July 2021. That was when Florida amended the statute to include a private right of action and uncapped statutory damages between $500 and $1,500 for each telemarketing call or text message that violates the FTSA’s autodialer provision.
Specifically, the FTSA prohibits placing telemarketing calls or sending marketing text messages with “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without first obtaining the recipient’s “prior express written consent.” Fla. Stat. § 501.059(8)(a).…
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