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Florida TCPA Action Survives Motion To Dismiss – Advertising, Marketing & Branding



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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
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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