Florida Softens Its Mini-TCPA Statute, While Maryland Enacts Its OwnJune 6, 2023
Recently, Maryland became the latest state to pass a mini-Telephone Consumer Protection Act (“TCPA”) statute, while Florida dramatically reduced the scope of its own mini-TCPA statute. The TCPA requires companies to take certain steps to ensure that their marketing initiatives and customer communications comply with federal law, but many states have passed their own mini-TCPA statutes with other, more restrictive requirements. Any time a company initiates contact with a consumer via call or text, it should determine whether that specific communication complies with the federal TCPA and any mini-TCPA statutes in the states in which consumers are located. Companies that market to consumers through telephone calls or text messages should carefully examine the requirements of federal and state telecommunication marketing statutes.
Previously, the Florida Do Not Call Act, also known as the Florida Telephone Solicitation Act, required prior express written consent before making a “telephonic sales call” to consumers using an automated system for the selection or dialing of telephone numbers. While the revised Act maintains a requirement for prior express written consent for prerecorded messages, for live calls, the amended version only requires such consent for telephonic sales calls made using an automated system to select and dial telephone numbers, aligning Florida’s law with the TCPA’s definition of autodialer (discussed more here). Telephonic sales calls are defined broadly to include telephone calls, voicemails, and text messages. The amended version of the statute further limits potential liability by only prohibiting “unsolicited” telephonic sales calls using an autodialer or prerecorded message.
One of the most significant changes of the new statute, particularly for companies concerned about facing class action lawsuits arising from text messages, is the addition of a 15-day safe harbor. Before being able to bring suit under Florida’s mini-TCPA statute, a called consumer must first text “STOP” to the telephone solicitor, and only if the telephone solicitor fails to stop sending text messages to the called consumer within 15 days of the receipt of the “STOP” message will the called consumer be able to bring suit. This provision effectively limits litigation relating to text messages in Florida under the Florida Telephone Solicitation Act to consumers who continued receiving text messages 15 days after sending the “STOP” opt out message, provided that such consumers did not consent again to receive such text messages within that 15-day period. The amended provisions of the Florida Telephone Solicitation Act took effect immediately when the Florida Governor signed the bill into law on May 25, 2023 and apply to any suit filed after, or any putative class action not certified on or before, May 25, 2023.
On May 3, 2023, Maryland became the latest state to enact its own mini-TCPA statute. Maryland’s Stop the Spam Calls Act shares many similarities with mini-TCPA statutes enacted in Oklahoma, Florida, and Washington (discussed more here), although there are important distinctions. Maryland’s statute regulates telephone solicitations, broadly defined to include text messages, and will prohibit the use of an automated system for the selection or dialing of phone numbers without express written consent of the consumer, like Florida’s law prior to its recent amendment. This language potentially exposes businesses to increased liability in Maryland because an autodialer that is compliant with the federal TCPA may run afoul of Maryland’s broad treatment of automated systems. The statute also includes strict caller identification requirements, and it prohibits the calling party from placing more than three calls or sending more than three text messages to the same consumer during a 24-hour period on the same subject matter or issue.
Like many other mini-TCPA statutes, the Maryland statute also prohibits commercial telephone sellers from making calls before 8:00 AM or after 8:00 PM in the consumer’s local time zone. Unlike other state telemarketing laws, the Maryland statute does not contain a separate penalty provision, but a violation of the statute is considered to be an unfair or deceptive trade practice subject to the penalties applicable thereto. The new law is set to take effect on January 1, 2024.
Companies that market to consumers through telephone calls or text messages should carefully examine the requirements of federal and state telecommunication marketing statutes, particularly if they use an automated system for the selection or dialing of telephone numbers. Even if companies do not operate in a particular state with a mini-TCPA statute, they can still incur liability by contacting telephone numbers with area codes from these states. The penalties for violating these statutes range from enforcement actions by state attorneys general to private causes of action seeking up to $1,500 per illicit communication.
The attorneys at Lewis Rice have extensive experience in ensuring that companies are compliant with state and federal telemarketing laws, as well as defending lawsuits alleging violations of these laws. If you need assistance with your compliance with federal and state telemarketing statutes, please contact one of the authors of this alert.