September 24, 2021

Volume XI, Number 267

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FIXING FLORIDA: The Czar Was Been Asked to Help Fix the Mini-TCPA–Here’s How We Do It

Editor’s Note: Yes, I’m serious. No, I have not been retained by anyone to lobby for a change in the Mini TCPA. I’m just doing it because it must be done. And I’m the Czar. And who else is going to get it done?

So you know how I’m always bragging that TCPAWorld.com is probably the third or fourth most influential legal blog in America?

Here’s further proof.

I’ve been contacted by some Florida lobbyist types who are working with the Florida legislature on how to modify the mini-TCPA to make it…. you know, coherent. They’ve been reading my coverage on TCPAWorld and think it is absolutely dead on perfect (my words, not theirs.) And they asked me to provide some proposed redlines to the statute to make it make sense.

Obviously if I’m going to do that I am going to do it publicly. So here you go… (BTW if anyone reading this thinks I missed something or that FL should consider something different let me know–I have some friends down there now and I’m happy to gather some input.)

Here’s the wish list in order of importance:

  1. As I wrote a while back, the antidote for both the constitutional ills and the ineptly drafted provisions that haunt ALL present robocall enactments is to STOP regulating technology and regulate CONTENT ONLY. See my discussion here.

  2. But if you’re going to regulate content you have to do it constitutionally. The Supreme Court has made clear that a broad restriction on speech cannot contain content-specific exemptions. That renders the enactment unconstitutional. Again, these are structural problems– in order to draft a constitutional statute the restriction must target ONLY the specific types of speech you want to avoid. It can’t target, for instance, all speech made using an autodialer, except for all speech the government likes. 059 likely survives this test. 616 and 617 do not–at least in my view given the broad applicable definitions.

  3. Speaking of definitions. The statute should align the definitions of “telephonic sales call” in 059 and “commercial telephone solicitation” in 616. One fix–what I would do–is change the term to “telephone solicitation” in both statutes and revise the definition to track the definition in 47 CFR 64.1200(f)(15) to assure consistency with the federal regulatory scheme. If Florida wants to be more restrictive in terms of call frequency and callable hours fine, but the definition of the types of conduct being regulated needs to be clear. Once you tighten up the definitions behind the restrictions you can drop the exemptions since they will not matter anymore.

  4. But let’s say Florida wants to do something different and cover more than just unsolicited calls–which is what I think it is trying to do, but its all a mess, so I don’t know. If so, ignore suggestion 3. Instead, define the word telemarketing clearly–but still make it the same in both chapters. Something like “a telemarketing call is any call made to any number offering to sell, rent, or lease goods and all calls offering any product or service that are made using an autodialer or a prerecorded voice message. This includes calls made to sell business products or calls to business numbers.” Or maybe Florida just wants to ban calls to consumers. Ok. Then say “a telemarketing call is any call made to any residential number offering to sell, rent, or lease goods and all calls offering any product or service for consumer purposes that are made using an autodialer or a prerecorded voice message. This excludes all calls made to business numbers or to sell a good or service for business purposes.” Simple. But it also begs the question…what is it that Florida wants to regulate and prevent? (Spoiler: I’m going to ask that same question 10 more times.)

  5. If Florida adopts one the “telemarketing” definitions above then it can do easy stuff like say: “It shall be illegal to make telemarketing calls without express written consent to Florida residents without express written consent of the called party.” (Now you’ve clearly delineated that the restriction applies to all telemarketing calls–however defined–made to Florida residents–an important limitation on the reach of the statute–and adopted a nice clean easy restriction.) The same thing can be accomplished in 616 and 617: “It shall be illegal to make more than 3 telemarketing calls within a 24 hour period without express written consent.” Or “It shall be illegal to make more than 3 telemarketing calls within a 24 hour period. Period.” Or “It shall be illegal to make more than 3 telemarketing calls within a 24 hour period, unless the consumer specifically said you can call more than that, or engaged in a back and forth conversation with you that lead to more than 3 contacts in a day.” You know, whatever Florida wants to do. Just make it clear. Same thing with the timing restrictions. “It shall be illegal to make a telemarketing call to a Florida resident after 8 pm in the resident’s time zone, without the express written consent of the called party, or unless the called party initiates contact outside of that window and the caller is responding to said contact within 5 minutes.” Or something similar. Again, Florida can do whatever Florida wants–it just needs to say what it wants to do please.

  6. “Called party” needs to be redefined to include the subscriber or regular user. That’s a no brainer. (Although “intended recipient” is also out there–just saying.)

  7. Clean up the definition of autodialer. Under the present definition a call made manually by an agent sitting at a telephone might be an autodialed call if a system told him or her what number to call next. Surely that’s not what was intended. (What was intended btw?) One fix is just to track the federal TCPA. That’s easy.  Another fix that is more expansive is to adopt the old Marks definition–systems that call from lists without human intervention. (There is at least a bunch of case law on that and callers would have some guidance around what is, and is not, covered.) Last, if Florida wants to govern dialers that determine dialing sequence, ok, but it should CLEARLY say that. No other statute in the history of Earth has governed such dialers. I’m not telling Florida it can’t be the first but it really needs to clarify what it is getting at. Something like “we here in Florida really do intend to regulate all dialers where a human being is not choosing which number to dial next–don’t ask us why– and, with that in mind, hereby say an autodialer includes any system that uses a computer program to select the sequence in which calls are to be dialed.” You might want to include some findings as to why in the world you are doing that, however, so that your lawyers will have something to say in defense of the definition when it gets challenged in court as failing the rational basis test.

  8. Don’t touch the express written consent definition. Its just fine.

  9. Clarify that the private right of action is ONLY intended to apply to calls made using an autodialer and without express consent. (Easy fix there, just insert the specific subparagraph in the provision granting a private right of action.) If Florida really intends to offer a private right of action for other provisions of the bill….it shouldn’t. Its bad idea for about 1,000 reasons and I won’t help Florida do it. (Nor will I touch the content/caller ID provisions–all those need to go IMO. They’re beyond repair.  At least until someone explains to me what they’re intended to accomplish.)

  10. Clarify that the attorney fee provision in 059 applies only to TRANSACTIONS that violate the sales provisions of 059, and not the restriction on autodialed calls (again that’s an easy fix.)

  11. Omit the phrase “including calls made through automated dialing or recorded messages” from amended 501.616(6) as it is redundant and confusing. A call made using an autodialer and a recorded message is obviously a call. Including that provision suggests that all calls made using that technology somehow trip the provision, even if the other requirements of the section are not met. (In other words it potentially reads as an unintended outright ban on all such calls.)

  12. Omit the phrase ” from any number” from amended 501.616(6)(b) or clarify what in the world that means. Obviously you’re not encouraging callers to cycle through DIDs, right? You want callers to call from a single number. And clarify that when you say “regardless of the phone number used to make the call” you mean the consumer’s number–not the caller’s number. (And if that’s not what you mean…say whatever it is that you do mean.)

  13. Let’s end where we started: figure out your exemptions. As noted exemptions make things unconstitutional. That’s bad. Especially when the exemptions don’t make sense. That’s really bad. For instance: 616(6) and (7) apply to “Commercial telephone sellers” which, per 501.603(2), does not include “a person or entity… exempted from this part by s. 501.604.” But 501.604 begins: “The provisions of this part, except ss. 501.608 and 501.616(6) and (7).” Circular much?  The problem is–I don’t know how to fix this because I don’t know what Florida wants to do here. Do you want folks to be exempted from (6) and (7), or don’t you?

Actually–as you can plainly see– the problem throughout the bill is that it is so vague that I sincerely don’t know what the bill is even designed to regulate–as explained above. That is a really serious problem folks.

We can’t have laws on the books like this in this nation. We just can’t. We have to do better.

Since I’m not sure what the intended purpose of each provision is, try as I might, I can’t even offer firm suggestions to draft a coherent replacement bill.

So here’s my offer–and it is an absolutely sincere one–I will fly out to Florida at my own cost and sit down with any staffers, legislators, executives, AGs–whoever has the juice to effect a repeal and replacement effort–and I will absorb input, understand what was intended by the provisions, and provide re-drafts of THE ENTIRETY of chapters 059 and 600 FOR FREE as a gift to the great people of the state of Florida.

My re-write will be clear, cogent, and consistent with constitutional requirements–and to the extent there are constitutional issues left over I will highlight those. (It might not be possible to get all the way over the First Amendment here, depending on what Florida is really trying to accomplish.)

Let me know if You (the Great State of Florida) really want my help. If so, I’m there for you baby. I’ve always liked your style, your IPAs and your hockey teams (but not so much your airports). But don’t lead me on. Lots of other states are interested in free statute-drafting if you’re not.

Unrelated, Congress–still waiting on that call from you on TCPA 2.0.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 209
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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