The Florida Telephone Solicitation Act isn’t unconstitutional, a consumer plaintiff disagreed Monday with CPAP breathing mask maker AeroCare at U.S. District Court for Middle Florida (case 22-cv-1047). In a separate case on Florida’s mini Telephone Consumer Protection Act (TCPA) at the District Court for Southern Florida, a federal judge ruled Oct. 20 that Everglades College must answer a FTSA class action concerning education-related text messages (case 22-cv-22307). AeroCare sent texts asking Tyler DeSouza to order supplies for the breathing machine he no longer owned, even after DeSouza replied “stop” three times and AeroCare responded each time promising no more messages. AeroCare argues that FTSA is too vague, impermissibly restricts speech and violates the U.S. Constitution's dormant commerce clause. "While Defendant suggests 'telephonic sales call' is vague in all applications because the phrase 'soliciting a sale' is undefined, a legislature is 'not required to define each and every word in a piece of legislation to express clearly its will,'" said the plaintiff, citing the 11th U.S. Circuit Court of Appeals in 2021 case Catalyst Pharms v. Becerra. "Persons of common intelligence" can understand what soliciting a sale means, it added. FTSA includes no exceptions covering AeroCare's texts, DeSouza said. FTSA doesn’t unconstitutionally restrict speech, the plaintiff said: Intermediate scrutiny applies since the law restricts commercial speech and FTSA satisfies that standard because the government has substantial interest in restricting unwanted robocalls, “especially after the caller is asked to stop.” FTSA directly advances that interest and is appropriately tailored, DeSouza said. FTSA doesn't violate the dormant commerce clause because Congress authorized states to regulate telemarketing in the TCPA and FTSA doesn't regulate or unduly burden interstate commerce, the plaintiff said. In the Everglades College case, Judge Beth Bloom said the college didn't "provide persuasive authority for the proposition that the FTSA does not apply to educational services” and the court won’t "read that limitation into the statute.” FTSA didn’t specifically carve out education, and consumer protection laws should be construed liberally in consumers' favor, she said. The text messages sent by the college are actionable, Bloom said. "Whether Plaintiff consented or whether the communications sent by Defendant were in response to Plaintiff's inquiry are issues of fact that the Court does not consider at this juncture.” The college's consent language, to which defendant agreed, doesn't “include consent to receive telephonic sales calls,” she added.

Hallmark, the largest U.S. manufacturer of greeting cards, operates “an aggressive telemarketing campaign where it repeatedly sends text messages” to phone numbers listed on the national do-not-call registry and “over the messaged party’s objections,” alleged Bridgeport, Connecticut, consumer James Williams in a class action Tuesday (docket 3:22-cv-01340) in U.S. District Court in New Haven that claimed Telephone Consumer Protection Act violations. Williams has no prior business relationship with Hallmark, and never gave Hallmark his phone number and or his consent to be contacted, it said. Despite his “unequivocal and repeated instructions” that the company stop all text messages, Hallmark continued to place text messages to his phone, it said. The company didn’t comment Wednesday.

Marketers in recent years “who often have felt stymied” by federal laws limiting solicitation by phone, fax or email “have increasingly looked to alternative technologies through which to send bulk solicitations cheaply,” said a Telephone Consumer Protection Act complaint Friday (docket 3:22-cv-00374) in U.S. District Court for Western Texas in El Paso. The “open rate” for SMS text messages exceeds 99%, and 90% of those messages are read within three minutes, compared with a 22% open rate for emails in the finance industry, said the complaint, alleging loanDepot violated the TCPA when it inundated consumer Mabel Arredondo with at least 18 unauthorized automated text messages to her personal cellphone between July 26 and Oct. 21. Unlike more conventional ads, SMS calls, and particularly wireless or mobile spam, “can actually cost their recipients money,” because cellphone users must frequently pay their wireless service providers either for each text message or call they receive or incur a “usage allocation deduction to their text plan, regardless of whether or not the message is authorized,” said the complaint. It seeks treble damages of up to $1,500 for each “knowing or willful” TCPA violation. LoanDepot didn’t comment Tuesday.

Parler engages “in aggressive telephonic sales calls to consumers without having secured prior express written consent” as required under the Florida Telephone Solicitation Act, and “with no regards for consumers' rights” under the Telephone Consumer Protection Act, alleged consumer Jordan Copeland in a Sept. 19 class action in Santa Rosa County, Florida, state court that Parler removed Friday to U.S. District Court for Northern Florida in Pensacola (docket 3:22-cv-21243]). Parler’s unsolicited text messaging caused Copeland “actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” said the complaint in which Copeland is representing himself. Parler denies Copeland “is entitled to any recovery and expects that it will prevail fully in this matter,” said its notice of removal. It’s the second FTSA and TCPA class action filed in Florida against the right-leaning social media platform in just over a month.

Procter & Gamble engaged in unsolicited text messaging to promote its Oral-B brand to consumers like Broward County, Florida, resident Christa Simmons, who didn’t give P&G her prior express written consent, Simmons alleged in a Telephone Consumer Protection Act and Florida Telephone Solicitation Act class action Thursday (docket 0:22-cv-61956) in U.S. District Court for South Florida in Miami. When P&G sent its text message Simmons, the company failed to identify the name of the individual caller, the name of the legal entity on whose behalf the call was being made and a phone number or physical address where P&G could be contacted, said the complaint. The company also failed to give Simmons instructions on how to opt out of future text messages, it said. Text messages using a short code, as P&G used when it sent out its texts, can be sent only using a computer, and cannot be sent using a standard telephone, it said. The complaint seeks injunctive relief barring P&G’s future unlawful behavior, plus treble damages to the extent that P&G’s misconduct “is determined to be willful and knowing.” P&G didn’t comment Friday.

An initial telephonic status hearing is set for Dec. 21 at 9:40 a.m. CST in the class action that alleges State Farm violated the Telephone Consumer Protection Act (see 2210110009), said an order signed Tuesday by U.S. District Judge John Kness for Northern Illinois. A joint status report is due Dec. 9, it said. State Farm, via third parties acting on its behalf, made telemarketing calls to the cellphone number of Thomas Gebka, a Hendersonville, Tennessee, resident, “without express consent,” in violation of the TCPA, alleged Gebka’s class-action (docket 1:22-cv-05546). The FCC has confirmed that sellers such as State Farm may not avoid TCPA liability by outsourcing their telemarketing activities, it said. State Farm has denied any TCPA wrongdoing.

DirecTV’s opening brief is due Dec. 7 at the 4th Circuit U.S. Court of Appeals (docket 22-2041), said a briefing order Wednesday. The company is seeking to overturn a lower court’s decision denying its motion to compel arbitration in a Telephone Consumer Protection Act class action. The plaintiff respondents in the appeal have until Jan. 6 to file their response, said the order.

Southern Power “intentionally, knowingly and/or willfully harassed and abused” plaintiff Lee Cunningham on numerous occasions by calling his cellphone within the past four years “with such frequency as can reasonably be expected to harass and in effort to collect upon an alleged debt,” said his Telephone Consumer Protection Act complaint Wednesday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. All the calls were placed using an artificial or prerecorded voice, and were initiated through an automatic telephone dialing system, it said. Due to the volume of intrusions, Cunningham “was unable to maintain a fully contemporaneous call log of each and every call he received,” it said. Southern Power didn’t comment Thursday.

Highlands County, Florida, resident Gwendolyn Haviland was inundated with unsolicited telemarketing text messages from the e-commerce site JessicaSimpson.com in violation of the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act, alleged Haviland’s class action Tuesday (docket 2:22-cv-14356) in U.S. District Court for Southern Florida in Miami. The text message solicitations failed to identify the name of the individual caller, the name of the legal entity on whose behalf the call was being made and a phone number or address where the caller could have been contacted, it said. Haviland “never signed any type of authorization permitting or allowing the placement of a telephonic sales call by text message using an automated system for the selection and dialing of telephone numbers,” it said. JessicaSimpson.com didn't comment.

The 9th Circuit U.S. Court of Appeals decision Oct. 12 reversing the dismissal of a lawsuit on grounds that the Telephone Consumer Protection Act doesn't extend to unwanted business texts “serves as an important reminder that business-related texts can still run afoul of the TCPA,” Troutman Pepper said Monday. In Chennette v. Porch.com, the 9th Circuit held (see 2210130080) that TCPA statutory protections “extend not only to individuals, but also to business entities,” the law firm's post said. The litigation involved claims the defendants violated the TCPA by using an automatic telephone dialing system to send 7,527 text messages to plaintiff home improvement contractors with purported client leads, the firm said. Fifteen of the 51 plaintiffs had registered their numbers with the national do-not-call registry, it said. The defendants moved to dismiss, contending the plaintiffs “lacked statutory standing because the TCPA protects only individuals from unwanted calls, and the Idaho district court judge agreed,” it said. But the 9th Circuit rejected this argument, noting the TCPA “provides that a ‘person or entity’ may recover money damages or obtain injunctive relief under the statute,” it said. Based on past FCC guidance and district court findings around the country, the 9th Circuit “held that cellphones on the registry are presumptively residential phones and can still be considered residential when used for both personal and business purposes,” said the firm.