"Indefinitely Postponed and Withdrawn From Consideration": Florida Telephone Solicitation Act Amendments Wait for Another Day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).
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.
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."
Surviving an FTC Investigation
If your organization's marketing practices have triggered a Federal Trade Commission (FTC) investigation, what do you do? Our attorneys have considerable years of experience handling significant FTC matters and working with and against senior FTC officials. Explore this topic and dozens more in the 10th edition of Venable's Advertising Law Tool Kit.