In September 2022, Mr. Eitan Barr filed a lawsuit on behalf of himself and other similarly situated individuals against Macys.com, LLC, ("Macy's") in the Southern District of New York. The Complaint alleged that the sending of a single text message violated the Telephone Consumer Protection Act ("TCPA") and the Florida Telephone Solicitation Act ("FTSA") because the subject text was sent after Plaintiff had already opted-out of the receipt of future text messages from Macy's.

In 2022, Barr received multiple commercial text messages from Macy's to his cell phone. In response, Barr replied "STOP." Thereafter, he received a confirmation text that he had successfully unsubscribed and would no longer receive any promotional texts from Macy's. However, one business day later, Plaintiff received an additional promotional text message from Macy's.

Macy's filed a Motion to Dismiss or, in the alternative, to transfer the case to the District Court for the Middle District of Florida. The Court granted the Motion to Dismiss as to the TCPA claims in September 2023. With respect to the FTSA claims, the Court held that "[s]ince the Court lacks original jurisdiction over the FTSA claim and declines to exercise supplemental jurisdiction over that claim, the FTSA claim is dismissed for lack of jurisdiction."

On November 27, 2023, Barr filed the same lawsuit in the District Court for the Middle District of Florida, but only with respect to his FTSA claims.

Time to Text Under the TCPA and FCC

While it is unclear how the Middle District of Florida will rule on this case, this may end up being a victory for the telemarketing industry if the Middle District looks to existing TCPA regulations for guidance instead of recent FCC proposals. Under current TCPA regulations, telemarketers must honor do-not-call requests within a reasonable period of time from when the requests are received, not to exceed 30-days. However, the Court may be influenced by the Federal Communications Commission's ("FCC" or the "Commission) May 18, 2023 Notice of Proposed Rulemaking ("NPRM"), which proposed that TCPA opt-out requests should be honored within 24-hours of receipt. The NPRM was adopted by the Commission on June 8, 2023.

In light of the recent regulatory attention and the upcoming ruling, businesses that send text messages must ensure that they have proper legal counsel to help keep them up to date on TCPA and FTSA compliance.

If you need to review your telemarketing practices and procedures or if you are the subject of a TCPA or FTSA lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

Related Blog Posts:

Revocation of Consent after the DC Circuit's TCPA Ruling

Are Confirmation Texts Allowed Under the TCPA?

Prerecorded Calls Do Not Entitle Plaintiffs to Treble Damages or Injunctive Relief

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