In early 2021, the United States Supreme Court issued its ruling in Facebook v. Duguid, 141 S. Ct. 1163 (2021), which significantly narrowed the definition of an automatic telephone dialing system (ATDS or auto-dialer) under the Telephone Consumer Protection Act (TCPA). Although Duguid resulted in fewer complaints alleging violations of the TCPA’s auto-dialer provision, the landmark decision resulted in other, perhaps unforeseen consequences: it spurred some states to enact their own “mini-TCPAs.” Some of these new laws, including in Florida, have broader definitions of ATDS. Not surprisingly, Florida’s mini-TCPA is already the subject of a flurry of class action complaints.

Background: Facebook v. Duguid

The TCPA imposes certain restrictions on parties that place calls to consumers and customers. Among them is a requirement that, if a caller uses an ATDS to place marketing calls or texts, it must have the prior express written consent of the called party. Prior to Duguid, plaintiffs filed hundreds of class action complaints each year alleging violations of that requirement. 

The Supreme Court issued its ruling in Duguid in April 2021 in order to resolve a Circuit Court split on the definition of an ATDS under the TCPA. In doing so, the Court narrowed the type of dialing systems that qualify as an ATDS, ruling that a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator. The Supreme Court found that dialers that simply dial numbers from stored lists do not constitute an ATDS. The Supreme Court recognized that if ATDS were to apply broadly to any device with the capacity to simply store and dial numbers, the TCPA could expose even “ordinary cell phone owners in the course of commonplace usage” to liability. 

Since the Supreme Court issued Duguid, the number of complaints alleging violations of the TCPA’s restrictions on the use of auto-dialers has declined. But that is not the only effect of Duguid, as Florida and Oklahoma subsequently enacted mini-TCPAs include a broader definition of ATDS than the TCPA post-Duguid.

Florida, Oklahoma, and Washington Enact Mini-TCPAs

On July 1, 2021, Florida put into effect an updated, sweeping telemarketing law,¹ amending and expanding the Florida Consumer Protection Law and the Florida Telemarketing Act. Florida’s mini-TCPA defines auto-dialer to include “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This definition is much broader than the TCPA’s definition of auto-dialer, which, as noted above, is limited to devices that use a random or sequential number generator. Under the Florida law, this essentially means that if a caller uses any form of an ATDS to contact a Florida resident for telemarketing purposes, the recipient must already have provided express written consent. 

Similar to Florida, the Oklahoma legislature has enacted its own mini-TCPA,² which similarly expands the definition of ATDS. Oklahoma’s proposed law contains nearly identical language to Florida’s, defining ATDS as “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” The Oklahoma statute went into effect on November 1, 2022.

Both Florida and Oklahoma’s laws also contain provisions that prohibit calls before 8 am or after 8 pm in the consumer’s local time zone. The laws include a rebuttable presumption that calls or text messages made to a number with an Oklahoma or Florida area code are made to residents of those states. The burden of proof will thus be on the defendant business to prove that a person may not be a Florida or Oklahoma resident at the time of the call. Further, both statutes contain provisions limiting the number of phone calls to no more than three in a 24-hour period.

Additionally, both Florida and Oklahoma’s mini-TCPA’s create a private right of action that allows for uncapped statutory damages at $500 per violation, as well as potential treble damages. Florida’s mini-TCPA also expressly allows for attorneys’ fees. Oklahoma’s statute does not address attorneys’ fees.

Washington State created its own mini-TCPA that went into effect on June 9, 2022.³ The Washington statute does not include a broad definition of ATDS but does present its own unique requirements. For example, telemarketers must identify themselves within 30 seconds of the call start time, the telemarketer must end call within 10 seconds of being asked not to call, and the telemarketer must honor all indications that called party wishes to end the call. Washington’s mini-TCPA also creates a private reaction, but only for “repeated” violations. The statutory penalty is $100 per violation, as well as attorneys’ fees and costs.

Impact of the Mini-TCPAs

The definitions in Florida and Oklahoma’s new laws may mean that only human number selection systems or manual calls will fall outside the definition of ATDS in those states going forward. Plaintiffs have already filed dozens of class action complaints alleging violations of the Florida mini-TCPA’s restrictions on the use of auto-dialers, and courts have not yet clarified the bounds of the new law. 

Other states may also soon follow Florida and Oklahoma’s footsteps. For example, the legislatures in Georgia and Michigan have proposed their own mini-TCPAs. 

The enactment of state mini-TCPAs that, in some cases, are more restrictive than the TCPA, can complicate the compliance picture and expand the scope of potential liability for companies that place marketing calls and texts to consumers and customers. A healthy compliance program should take these new laws into consideration, as simple compliance with the TCPA may no longer be sufficient to avoid class action liability.

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