As detailed in prior articles, the recent amendments to the Florida Do-Not-Call Act and the Florida Telemarketing Act (the “Florida Amendments) created a state-level “mini TCPA.” The Florida Amendments went into effect on July 1st, 2021, and the state lawsuits now made possible under the new private right of action have already started to trickle in.
In an effort to thwart this endeavor, an organization called the Enterprise Communications Advocacy Coalition (ECAC), which describes itself as the “only coalition dedicated exclusively to advocacy on behalf of the contact center industry,” recently filed a Petition for Declaratory Ruling with the Federal Communications Commission. In the Petition, the ECAC requested the FCC to preempt those portions of the Florida Amendments that “relate to interstate telemarketing to the extent that they are more restrictive than” the FCC’s rules and regulations implementing the federal TCPA.
What is Federal Preemption?
The doctrine of federal preemption is based upon the Supremacy Clause of the Constitution, which states that federal law is “the supreme Law of the Land” notwithstanding any state law to the contrary. Under the federal preemption doctrine, federal law supersedes conflicting state laws. This can happen when a federal statute or regulation contains explicit preemptive language, or by implication, when Congress’s preemptive intent is implicit in the relevant federal law’s structure and purpose. The ECAC’s petition relies upon the implied intent of Congress in granting the FCC the power to enact uniform rules enforcing the TCPA.
The Petition
In its Petition, the ECAC points out that in 2003 the FCC itself observed that “any state regulation of interstate telemarketing calls that differs from our rules almost certainly would conflict with and frustrate the federal scheme and almost certainly would be preempted,” and that “any party that believes a state law is inconsistent with section 227 (the TCPA) or our rules may seek a declaratory ruling from the Commission.”
The ECAC argues that four specific aspects of the Florida Amendments create a more restrictive environment applicable to interstate telemarketing laws than the TCPA and its associated regulations and must therefore be preempted. The four aspects are as follows:
Call Time Restrictions – The Florida Amendments narrow the permissible calling time window for telephone solicitations (which ends at 9:00 p.m. under the FCC’s rules) to 8:00 p.m. The Petition argues that this imposes increased compliance costs on telemarketers that make interstate calls to Florida residents and “frustrates the federal objective of creating national rules.”
Call Frequency Limits – The Florida Amendments restrict the number of “commercial solicitation phone calls” that a telemarketer may make from any number to any person over a 24-hour period to three (3) calls. The Petition claims that this restriction places an enormous burden on telemarketers that initiate interstate calls to track this data, and infringes telemarketers’ rights to free speech.
Caller ID Restrictions – The Florida Amendments ban commercial telephone solicitors from using technology that “deliberately displays a different caller identification number than the number the call is originating from to conceal the true identity of the caller.” In the Petition, the ECAC notes that the FCC’s TCPA regulations “specifically permit the telemarketer to substitute the name of the seller on whose behalf the telemarketing call is placed as well as the seller’s customer service telephone number, provided that a call recipient may call the telephone number provided to make a do-not-call request during regular business hours.” Thus, the revised Florida laws, in this respect, are “expressly at odds with the TCPA regulations.”
Automated Equipment/Automatic Telephone Dialing System – The Florida Amendments restrict telephonic sales calls involving an “automated system for the selection or dialing of telephone numbers or playing of a recorded message when a connection is completed to a number….” In its Petition, the ECAC notes that the TCPA restricts calls initiated with “an automatic telephone dialing system” – a term defined in the TCPA and the FCC’s regulations, and that “automated system” as used in the Florida Amendments is undefined, and goes on to argue that to the extent the undefined term in the Florida Amendments “includes equipment that is not within the definition of automatic telephone dialing system, the statute must be preempted”
What Comes Next
Under Section 5(d) of the Administrative Procedure Act, the FCC may issue declaratory rulings terminating a controversy or removing uncertainty with respect to its rules. After a petition requesting such a is submitted, the next step in the process is for the FCC to issue a notice seeking public comments on the petition. After the notice submission period, the FCC considers the comments and issues a ruling. The entire process can take months or longer, depending upon the matter and the agency’s timeframe.
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