Oklahoma Adopts a Troublesome “Mini TCPA” Law That Includes a Private Right of Action
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Mini TCPA Law
Organization Seeks FCC Ruling Invalidating Amendments to Florida Telemarketing Law
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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Florida’s “Mini-TCPA” Amendment Becomes Law
On July 1st, the recent amendments to Florida’s telemarketing statutes discussed in a prior article were signed into law. The amendments included with SB 1120 essentially transforms Florida’s existing telemarketing laws into a “mini TCPA,” by incorporating many of the same elements found in the Telephone Consumer Protection Act (including a private right of action with $500 statutory damages, which can be tripled for willful violations).
However, although it substantially mirrors the TCPA, the new Florida law includes some important distinctions from equivalent provisions found in the federal law, which include the following:
A Broader ATDS Definition: The Florida law applies to “automated system[s] for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed.” Many dialing platforms that may be excluded from TCPA coverage under the Supreme Court’s recent Facebook ruling will nevertheless qualify as automated dialing systems under this definition.
A Broad Definition of Covered Calls: The new law makes no distinctions between calls, texts, or ringless voicemails. Instead, it applies to “telephonic sales calls,” which are broadly defined as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”
Narrower Call Hours: The new law restricts the hours in which a telephonic sales call can be placed, from 8 am to 8 pm (previously calls could be made until 9 pm).
Call Attempt Limitation: The new law makes it unlawful to place more than three telephonic sales calls from any number to a person over a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the call. Remember, a “telephonic sales call” includes calls, texts, and ringless voicemails.
Narrower Definition of Called Party: The new law specifies that a “called party” is only the “regular user” of the phone (unlike the federal standard, which also includes the subscriber to the phone).
Like the TCPA, the new Florida law includes an exemption for calls placed with the prior express written consent (PEWC) of the called party, and defines PEWC in a similar manner as the applicable federal rules. Under the Florida law, “Prior express written consent” means a written agreement that:
- Bears the signature of the called party (including an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law).
- Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the called party a telephonic sales call using an automated system for the selection or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail;
- Includes the telephone number to which the signatory authorizes a telephonic sales call to be delivered; and
- Includes a clear and conspicuous disclosure informing the called party that: (a) By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called; and (b) He or she is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
So, if you are placing calls based upon the TCPA’s PEWC exemption, it should also apply to the PEWC standard established by the new Florida law.
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Florida Poised to Enact “Mini TCPA” Law
As discussed in the State Library section, although the federal TCPA gets most of the media’s attention, numerous states have enacted legislation that imposes similar obligations on marketers and other companies seeking to interact with consumers, as well similar penalties for violators, including a state-based private right of action.
Florida is now poised to join other states with “Mini TCPA” laws, including Arizona, Connecticut, and Georgia, with the passage of CS/SB 1120, which updates the Florida Consumer Protection Law and the Florida Telemarketing Act by creating a stricter version of TCPA. Some of the more significant aspects of the proposed new law are summarized below.
PEWC Required: The new law restricts the use of automated technology and prerecorded messages by requiring prior express written consent before placing a call or sending a text message. These restrictions even apply to calls made with an established business relationship and calls to consumers who are not on the Florida state DNC list.
Broad ATDS Definition: The new law includes an autodialer definition that is broader than how that term is defined in the TCPA, as interpreted by the Supreme Court in Facebook, which includes “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This broad definition is untested will likely result in significant and costly litigation to determine its applicability.
Private Right of Action: The new law includes a private right of action with potential damages as high as $1500 for each willful violation, or actual damages or $500, whichever is greater, for violations that are not deemed to be willful.
Restricted Call Times: The new law narrows legal call times (currently 8:00 am to 9:00 pm) to 8:00 am to 8:00 pm.
Area Code Presumption: The new law includes a presumption that any call made to a Florida area code is a call to a Florida resident or to a person in the state, regardless of where the recipient may actually reside.
Cap on Call Attempts: The new law includes a three-call cap on the number of attempts to reach a Florida consumer within a 24-hour period.
Upon receipt of the bill, Governor Ron DeSantis will have 15 (fifteen) days to sign it or veto it. If he fails to any take action within that period, then the bill will automatically become law and be effective on July 1, 2021. If the bill is enacted into law, Blacklist members seeking to contact Florida residents should evaluate it carefully and be prepared to adjust outbound calling and texting campaigns accordingly.
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