Telephone Consumer Protection Act (TCPA) Violations

In Florida, which laws and regulations apply to TCPA violations?

The Telephone Consumer Protection Act (TCPA, which is federal law,  aims to protect consumers from unwanted telemarketing calls and unsolicited advertisements. However, Florida has its own set of laws that supplement the TCPA. The Florida Telemarketing Act (FTA) regulates telemarketing activities within the state.

Moreover, Florida’s Consumer Collection Practices Act (FCCPA) helps protect consumers from abusive debt collection practices, which can intersect with TCPA violations. In addition, the Florida Do Not Call Program allows Florida residents to add their phone numbers to a state do-not-call list, further protecting them from unwanted solicitations. The Florida Department of Agriculture and Consumer Services handles subscriptions to this list.

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What are common violations of the TCPA that lead to litigation?

The following issues commonly lead to TCPA litigation:

• Robocalls without consent: Initiating auto-dialed or prerecorded calls to cell phones without obtaining prior express permission from the recipient can lead to TCPA litigation.
• Telemarketing calls to numbers on the do-not-call list: Making telemarketing calls to consumers who have registered their phone numbers on the federal or Florida do-not-call lists can result in a TCPA violation.
• Text message spam: Sending unsolicited text messages, especially those generated using auto-dialers, to consumers without their express consent is a common TCPA violation that often leads to lawsuits.
• Unsolicited faxes: Transmitting unsolicited advertisements via fax without adhering to the required opt-out notice provisions is another TCPA violation that can trigger legal action.

When a set of facts is appropriate for TCPA defense litigation, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path to seek appropriate remedies.

To determine whether your unique situation may necessitate litigation, please contact our office to set up your initial consultation.

What elements must a plaintiff prove for a TCPA violation, and what are common legal defenses?

To establish a TCPA violation in Florida, a plaintiff must generally prove the following elements:

• The defendant made a call, sent a text message, or transmitted a fax to the plaintiff;
• The communication was made using an auto-dialer, a prerecorded or artificial voice, or without the required opt-out notice (in the case of faxes); and
• The defendant did not have the plaintiff’s prior express consent to make the communication.

Common legal defenses against TCPA claims include:

• Prior express consent: Arguing that the plaintiff provided their prior express consent to receive the communication, either in writing or orally, and had not revoked it.
• Emergency purposes: Asserting that the communication was made for emergency purposes, as the TCPA allows for certain exceptions when a call is necessary for health or safety reasons.
• Technical errors: Demonstrating that the communication resulted from a technical error or glitch rather than intentional wrongdoing, which could mitigate or eliminate liability under the TCPA.
• Good faith reliance on the FCC’s rules: Claiming that the defendant relied in good faith on Federal Communications Commission (FCC) rules and guidance, which might provide a basis for leniency or reduced penalties.

Please contact our office to set up your initial consultation to see what actions or defenses may be available for your unique situation.

What are effective measures to minimize the risk of litigation?

Consider the following measures:

• Obtain consent: Collect prior express consent from consumers before making auto-dialed or prerecorded calls, sending text messages, or transmitting faxes. Consent can be in writing or orally.
• Maintain do-not-call lists: Implement and regularly update internal do-not-call lists to avoid contacting consumers who have opted out of receiving calls. Also, cross-check with the federal and Florida do-not-call lists.
• Establish compliance policies: Develop and enforce clear compliance policies, including training employees on TCPA requirements and best practices.
• Monitor third-party vendors: If using third-party vendors for telemarketing or other communication activities, ensure they comply with TCPA requirements and monitor their activities closely.
• Implement technology safeguards: Utilize technology tools, such as call-blocking and filtering solutions, to minimize the risk of violating TCPA restrictions.

Frequently Asked Questions

1. What types of calls or messages are covered by the TCPA?

The TCPA covers various types of communications, including auto-dialed or prerecorded calls, text messages, and unsolicited fax transmissions. It applies to telemarketing and non-telemarketing communications but has specific requirements for each.

2. Are there any exceptions to the TCPA consent requirements?

Yes, there are exceptions to the TCPA consent requirements. For instance, calls made for emergency purposes, calls made by or on behalf of a tax-exempt nonprofit organization, or calls made to deliver purely informational messages may not require prior express consent.

3. What are the penalties for violating the TCPA?

Violations of the TCPA can result in significant penalties, ranging from $500 to $1,500 per call or message, depending on whether the violation was willful or negligent. Additionally, courts may grant injunctive relief; in some cases, plaintiffs may file class action lawsuits, leading to substantial financial exposure for businesses.

Have more questions about a TCPA defense-related situation?

Crucially, this overview of TCPA violations does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.