Last month, Florida Gov. Ron DeSantis signed the much-anticipated amendment to the Florida Telemarketing Solicitation Act (FTSA) into law, significantly limiting the ability of private plaintiffs to file telemarketing lawsuits under the FTSA. While this will undoubtedly stem the tide of lawsuits under Florida’s law, class action plaintiffs’ attorneys have wasted no time in finding new states to file suit.
Less than a week before Florida amended the FTSA, a plaintiff filed the first lawsuit under Oklahoma’s Telephone Solicitation Act (OTSA), Streater v. WhaleCo, Inc. The lawsuit challenges text messages sent by WhaleCo., the operator of an online marketplace, alleging violations of the Telephone Consumer Protection Act and the OTSA. According to the complaint, the defendant sent multiple texts with coupon codes to the plaintiff to “advertise and call attention to Defendant’s products and related services,”
First, the plaintiff alleges the defendant violated the OTSA by using “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message” to make a telephonic sales call without express consent of the called party. Interestingly, the plaintiff pointed out that the texts were sent from short codes and asserted that text messages using a short code “can only be sent utilizing automated computer equipment and not a traditional telephone.”
Second, the plaintiff alleged that the defendant violated the OTSA by using short-code telephone numbers to send text messages to the plaintiff. This, in turn, prevented the plaintiff from calling or being connected to the defendant, allegedly contravening the OTSA’s requirement that, if a telephone number is made available through a caller identification service as a result of a commercial telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a commercial telephonic sales call was placed.
Third, the defendant allegedly violated the OTSA by calling the plaintiff before 8 a.m. and after 8 p.m. in plaintiff’s local time zone. Furthermore, the plaintiff alleges the defendant violated the OTSA by making more than three commercial telephone solicitation phone calls to the plaintiff on the same issue within a 24-hour period. In addition, the plaintiff alleges that the defendant violated the TCPA’s prohibition on telephone solicitation of consumers registered on the National Do Not Call Registry.
The lawsuit will test the bounds of the OTSA, including its exemption for existing business relationships. Given the amendments limiting the FTSA, we expect to see increasing lawsuits under Oklahoma law.
Oklahoma is not alone. Maryland recently passed a new telemarketing law, which requires prior express written consent for any prerecorded or automated marketing call made using an automated system for the selection or dialing of telephone numbers. It would also restrict calling hours and call volumes. As a result, it will likely lead to substantial litigation when it takes effect in 2024. New Jersey, too, amended its law to include disclosure requirements, which will go into effect in December. These changes join those in other states, including new disclosure requirements imposed by amendments to New York’s law.
With the emerging patchwork of laws, and changes to previous laws, entities using outbound calling or texting should take heed.
