29 August 2022

Florida TCPA Action Survives Motion To Dismiss

Klein Moynihan Turco LLP


Klein Moynihan Turco LLP (KMT) maintains an extensive practice, with an international client base, in the rapidly developing fields of Internet, telemarketing and mobile marketing law, sweepstakes and promotions law, gambling, fantasy sports and gaming law, data and consumer privacy law, intellectual property law and general corporate law.
In a recent Florida putative class action, Pariseau v. Built USA, LLC, plaintiff alleged that defendant violated the Telephone Consumer Protection Act ("TCPA") as well as the Florida...
United States Media, Telecoms, IT, Entertainment
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In a recent Florida putative class action, Pariseau v. Built USA, LLC, plaintiff alleged that defendant violated the Telephone Consumer Protection Act ("TCPA") as well as the Florida Telephone Solicitation Act ("FTSA"), by sending unsolicited text messages advertising a sweepstakes contest. Here, plaintiff claimed "never [to have] invited or consented to the text message" and had also registered the cell phone number in question with the National Do-Not-Call Registry. Further, plaintiff allegedly replied, "Stop," to the unsolicited text message, but continued to receive a total of six text messages regarding the sweepstakes. Significantly, as readers of our blog know, the TCPA restricts entities from contacting consumers whose phone numbers are on the Do-Not-Call Registry unless the telemarketer has obtained the consumer's prior express consent. 

Why Should This Florida TCPA Case Matter to You?

In this Florida TCPA case, the defendant alleged, among other things, that the TCPA only applies to actual voice calls and not text messages. Early in the decision, the court reviewed relevant caselaw and determined that text messages under these facts, fall within the category of a "telephone call" under the law. The court noted, "several decisions . . . compel the conclusion that a text message is a telephone call under the TCPA." This case is important to all businesses that advertise or market their services via actual telephone calls or text messages: it must be done within the confines of applicable laws or risk legal and financial exposure. Here, Built USA, LLC, will be required to continue defending its marketing campaign in court.

Comparing this Florida TCPA Case to Other Litigation

As attorneys with extensive experience in this space, we know that the most important aspect of any TCPA case are the facts at hand. For instance, in a recent case, in a different jurisdiction, the plaintiff alleged that she received a text message (with no audio component) from Subway offering her a free bag of chips. She replied with a request to opt-out of future text message advertising and then still received another text message from Subway. Plaintiff claimed that Subway's text message violated the TCPA's restrictions on placing calls using a prerecorded voice. According to plaintiff, Subway's text message was pre-written and thus qualified as "prerecorded." The court ultimately agreed with Subway and ruled that "text messages without an audio component are not prerecorded voices."

How to Avoid the Outcome of this Florida TCPA Case

Businesses need to be aware of the complexities of the TCPA provisions, and their marketing campaigns must be compliant. Obtaining proper prior express written consent to contact consumers is the ultimate defense and protection against TCPA violation claims. Having gold-standard telemarketing policies and procedures is perhaps the second most important avenue of protection. Your business' goal should be to prevent these claims altogether by implementing industry best TCPA compliance policies. 

Related Blogs: 

The TCPA SMS Rules Keep Changing: Why You Need A Telemarketing Attorney To Keep Up

Did This Fresh Subway TCPA Litigation Decision Refresh A New Type Of Claim?

Are FTSA Lawsuits Here To Stay?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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