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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TCPA, as long as those numbers themselves are not pulled out of thin air.Continue Reading “Indefinitely Postponed and Withdrawn From Consideration”: Florida Telephone Solicitation Act Amendments Wait for Another Day

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

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

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.Continue Reading Oklahoma Proposed Autodialer Legislation Would Cause Litigation to Come Sweepin’ Down the Plain

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).Continue Reading Florida Legislature to the Rescue? House Bill Proposed to Fix the Florida Telephone Solicitation Act’s Autodialer Provision

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

Three weeks ago, we informed you that the Louisiana Public Service Commission (PSC) had declared a state of emergency in light of Hurricane Ida, which meant that callers could not place any “telephonic solicitations” into the state, regardless of whether the calls were with the recipients’ prior express written consent, pursuant to an established business…

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