After years of litigation in federal courts across the country over purported Telephone Consumer Protect Act (TCPA) violations, there has been a recent shift in focus to what is known as mini-TCPAs being enacted by state legislatures which seek to regulate intrastate telemarketing communications. In particular, dozens of putative class actions have been filed over the last several weeks in Florida alleging violation of the Florida Telephone Solicitation Act, Florida’s mini-TCPA. Amendments to the Florida Telephone Solicitation Act went into effect July 1, 2021 and included an expansive definition of “automated dialers;” new restrictions for prior express written consent for all telephonic sales calls using an automated system; and a private cause of action that allows recovery of at least $500 per violation.
Because the TCPA does not preempt state laws that are intended to be more protective than the TCPA, businesses utilizing calling campaigns which send marketing calls or text directly to consumers in states such as Florida need to be mindful of these additional regulations. Moreover, Florida courts have been hesitant to dismiss claims under the Florida Telephone Solicitation Act leaving little guidance as to how exactly the definitions and provisions of this statute will be interpreted.
Businesses should note, however, that a clear and conspicuous arbitration provision will likely be enforced, which can limit the exposure to putative class actions. In Kravets v. Anthropologie, Inc., the Southern District of Florida court granted a motion to compel arbitration where the agreement to arbitration was present in the Text Terms and Conditions which were linked in advertisement where the consumer signed up for the company’s text messaging program. Specifically, the court found that because the Text Terms were listed above the “GET FREE SHIPPING NOW when you sign up for email and texts” button and we bold and underlined links, they were sufficient to put the consumer on notice of the arbitration provision and by clicking the button the consumer was assenting to the Text Terms. No. 22-cv-60443, 2022 WL 1978712 (S.D. Fla. June 6, 2022). Likewise, in a recent decision, the Southern District of Florida again granted a motion to compel arbitration in a case involving claims under the Florida Telephone Solicitation Act finding even where the defendant had already filed an answer, the court entered a scheduling order, and the parties filed a joint notice of a mediator selection. Roger Amargos v. Verified Nutrition LLC, No. 22-cv-22111, 2023 WL 1331261 (S.D. Fla. Jan. 31, 2023).
While the Florida Telephone Solicitation Act has been the focus as of late, other state legislatures have either passed or proposed similar statutes with private rights of action which will likely lead to further litigation. On June 9, 2022, Washington passed its own mini-TCPA and November 1, 2022, Oklahoma’s Telephone Solicitation Act took effect. Both resemble the Florida Telephone Solicitation Act but have their own unique provisions and restrictions that businesses need to be aware of when engaging in marketing campaigns through call or text. Additionally, Georgia has a pending bill that remains viable to be enacted during the 2023 legislative session and would potentially allow civil litigants to recovery $1000 per violation and Maryland has proposed a Mini-TCPA bill with a proposed effective date of October 1, 2023.
In light of the rapid changes to the legal landscape governing marketing campaigns using call and text technology, businesses need to re-analyze their procedures to ensure compliance with not only the TCPA but also these state laws. Seyfarth will continue to monitor these changes in law and the case law that develops.
