Are States the New Battleground for Robocall Class Actions?

The Legal Intelligencer

Florida may have just become the newest battleground for telemarketing robocall class actions.

For years, callers aggrieved by robocalls have sought recourse under the federal Telephone Consumer Protection Act (TCPA). Enacted in 1991, the TCPA prohibits the use of automatic telephone dialing systems (or autodialers) as well as artificial or prerecorded voice messages to place unsolicited telemarketing calls. It applies to phone calls and text messages alike, and (among other things) often requires callers to obtain prior express written consent from consumers. With an estimated 45.9 billion robocalls made in 2020 (that’s 1,455 calls every second!), the TCPA’s import grows greater by the day.

The U.S. Supreme Court’s April 1 opinion in Facebook v. Duguid, however, narrowed the scope of the TCPA significantly. There, the court held that “to qualify as an ‘automatic telephone dialing system’ under the TCPA, 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.” Under this definition, Facebook’s database—which stores users’ telephone numbers—did not qualify as an autodialer because it does not use “random or sequential number generator.”

This holding dealt a significant blow to the plaintiffs bar. Going forward, TCPA defendants will likely continue to rely heavily on Facebook to argue that the technology used to send text messages or place calls does not constitute an autodialer and, therefore, falls outside the ambit of the TCPA.

Seeking to avoid this inevitability, plaintiffs lawyers have sought refuge in a newly enacted state law that went into effect July 1. In amending the Florida Telephone Solicitation Act, the Florida legislature passed what has been dubbed the Florida “mini-TCPA.” This amendment, CS/SB 1120, is notable in that it not only represents the first complete state analog to the TCPA, it provides aggrieved Floridians with an independent cause of action under state law that is potentially broader than the federal rights prescribed under the TCPA.

The critical difference between the Florida law and the TCPA is the former defines an autodialer as “an automated system for the selection or dialing of telephone numbers.” Thus, plaintiffs filing under the mini-TCPA are expected to argue this definition is broader than the one set forth under the federal TCPA, which, as noted, is conditioned on the use of “a random or sequential generator.” This qualifier is notably absent from the mini-TCPA.

Under the mini-TCPA, citizens can bring a private cause of action to enjoin a violation of the statute and recover actual damages or $500—whichever is greater. Those found to have violated the statute, in turn, will be required to pay at least $500 in damages plus attorney fees and cost. Federal courts are unanimous in ruling the federal law does not include attorneys fees and costs.

The Florida statute further requires that businesses obtain the “express written consent of the called party” prior to placing a prohibited telephone sales call to a consumer.

Moreover, the legislation creates a rebuttable presumption that a sales call made to any area code in Florida “is made to a Florida resident or person in this state at the time of the call.”  And, the mini-TCPA expressly covers telephone calls, text messages, and voicemail transmissions initiated through an autodialer as defined under the statute. The mini-TCPA, in short, offers potential plaintiffs multiple avenues for filing an action.

While it may be dubbed the mini-TCPA, there is nothing small about the potential exposure imposed by Florida’s newly exacted telemarketing law. And without the robust jurisprudence surrounding the federal TCPA—cultivated over three decades, including several decisions from the U.S. Supreme Court—the contours of the Florida law are extremely untested. It is essentially the Wild West when it comes to anticipating how courts will respond to the Florida law. Further, while no other state has yet to pass such a comprehensive telemarketing scheme, several states do impose other restrictions on automated dialing. Should another state follow Florida’s lead, the possibility of even more telemarketing class actions based on unique state laws becomes a real possibility.

With an arguably broader autodialer definition, a rebuttable presumption, and the availability of attorney fees and costs, Florida’s mini-TCPA has all the hallmarks of trendsetting litigation; it may pave the way for a tidal wave of similar lawsuits rooted in state law. Businesses operating in Florida and elsewhere would be well advised to consult with experienced counsel ensure compliance with the new law and its likely successors.

“Are States the New Battleground for Robocall Class Actions?” by Jeffrey N. Rosenthal and Thomas F. Brier Jr. was published in The Legal Intelligencer on September 29, 2021.

Reprinted with permission from the September 29, 2021, edition of The Legal Intelligencer © 2021 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.