As we wind down the year and before I set my out of office for a much needed respite, I thought that I’d give the telemarketing litigation community a bit of a holiday gift—some of the legislative history for the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, and, specifically, the Florida Legislature’s own views of the statute’s applicability to interstate versus intrastate communications. That matters a lot in defending FTSA class actions. But, first, let me air some of my grievances with the FTSA.

Despite being in effect since 1990, the FTSA has only recently gained notoriety due to an amendment in July 2021, which added a private right of action to the statute, allowing consumers to sue for between $500 and $1,500 per telemarketing call or marketing text message that violates the statute. (That sure sounds a lot like the federal Telephone Consumer Protection Act’s (“TCPA”) statutory damages scheme, no?) There is no cap on damages as there is with other Florida statutes, such as the state’s debt collection act, and there are remarkably few FTSA decisions out there.…

Continue Reading A Festivus Miracle! A Deep Dive into the Legislative History Regarding Florida Telephone Solicitation Act’s Applicability to Interstate Communications

Yes, I know, Shakespeare was English (which is about all I remember about him from the CliffsNotes I relied upon in high school), and Louisiana has French origins. But it’s Friday afternoon and I’m tired. This is about as creative as it gets right now.

Today, the Louisiana Public Service Commission (PSC) declared a state of emergency and announced, pursuant to its Do Not Call Program General Order, in no unclear terms, that “NO telephonic solicitor shall engage in ANY form of telephonic solicitation” is permitted during the state of emergency (at least while the Office of Homeland Security and Emergency Preparedness requires the PSC to report to the Emergency Operations Center). The PSC is not kidding around about this, as the emphasis in the announcement is its own. The state of emergency extends from August 26 through September 27, 2021, unless it is terminated sooner.

I have received a number of calls and emails from clients over the past few hours about what the PSC’s announcement actually means: are calls with the consumer’s prior express written consent permitted? What about calls pursuant to an established business relationship? And how about debt collection calls to Louisiana residents—are those allowed to be placed? The answer is no, no, and still no. Here’s why.…

Continue Reading To Call, or Not to Call, in Louisiana During a State of Emergency: That Is the Question

On May 26, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Cranor v. 5 Star Nutrition, LLC, holding that the receipt of a single text message is a sufficient injury to convey standing under the Telephone Consumer Protection Act (“TCPA”). This creates a circuit split with the Eleventh Circuit’s 2019 opinion entered in Salcedo v. Hanna, which we previously blogged about.

Cranor made its way to the Fifth Circuit after the district court dismissed the case on grounds that a single text message doesn’t “involve [the same] intrusion into the privacy of the home” as a call to a residential landline. In its opinion, the Fifth Circuit looked to the (1) congressional purpose of the TCPA, and (2) traditional basis for actionable, intangible harm in holding that the receipt of a single text message constitutes an injury under the TCPA.…

Continue Reading Singled Out: One Text Message Conveys TCPA Standing in the Fifth Circuit

Yesterday, the Supreme Court issued a 9-0 unanimous decision authored by Justice Sotomayor (with Justice Alito writing a concurring opinion) in Facebook, Inc. v. Duguid, resolving the circuit split on what constitutes a prohibited “automatic telephone dialing system” (more often referred to as an “autodialer” or “ATDS”) and adopting a narrow definition of ATDS. Yesterday’s ruling likely provides welcome relief to those subject to the TCPA—at least for the time being. More on that below.

Specifically, the Court favored the Third, Seventh, and Eleventh Circuits’ autodialer definitions and held that, in order to be an ATDS, “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” In other words, a telephone number must essentially be pulled out of thin air and then called or texted; that is what “random or sequential” number generation means. That type of technology was commonly used in the early 1990s when the TCPA was enacted, but virtually no one uses it anymore. Now, companies typically dial from stored lists of specific telephone numbers. The Supreme Court’s concern was that, if it accepted the alternative ATDS definition—that dialing from a cultivated list of telephone numbers constitutes autodialing—such interpretation “would capture virtually all modern cell phones . . . The TCPA’s liability provisions, then, could affect ordinary cell phone owners in the course of commonplace usage, such as speed dialing or sending automated text message responses.” Notably, during oral argument last December, Justice Sotomayor foreshadowed her and the other justices’ doubts in questioning to Bryan Garner, Duguid’s counsel:…

Continue Reading Message Received: Supreme Court Narrowly Construes Autodialer Definition

The issue of what exactly is an autodialer, subject to the restrictions of the Telephone Consumer Protection Act (“TCPA”), may eventually be resolved. But for now, the outlook is much like the long-ago Brooklyn Dodger’s chance of winning the World Series: “Wait ‘Til Next Year.” On July 29, 2020, a divided, 2-1 panel in the Sixth Circuit issued its opinion in Allan v. Pennsylvania Higher Education Assistance Agency, deepening the circuit split over the breadth of the TCPA. Specifically, the Sixth Circuit held that any device that dials from a stored list of numbers is sufficient to constitute an “automatic telephone dialing system” (“ATDS” or “autodialer”). This decision comes on the heels of the Supreme Court granting certiorari in Facebook, Inc. v. Duguid, setting the stage for the high court to, hopefully, not only resolve the split among the circuits, but produce a definition of an autodialer that permits the responsible and efficient generation of calls for a broad array of legitimate reasons—indeed in some cases emergency. (Interestingly, in Allan, the defendant opposed the plaintiffs’ motion to stay the appeal pending Duguid. That’s likely because the defendant had previously prevailed on the ATDS issue in the Eleventh Circuit a few months earlier in a consolidated appeal.)

In Allan, the plaintiffs received hundreds of unwanted calls and automated voice messages regarding student loan debt after they had requested to no longer be called; many of these calls delivered a prerecorded message as well. Plaintiffs sued alleging that they did not consent to the unwanted calls; the district court granted summary judgment to the plaintiffs. On appeal, the Sixth Circuit addressed whether the Defendant’s calling platform constituted an ATDS where it created a calling list based on stored numbers and placed calls, connecting recipients to operators.…

Continue Reading Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?