By: Isaac Shloss – 5/16/2024 | Navigating Compliance with Clarity and Confidence.
Stay compliant by staying informed.
While there have been lawsuits on this specific topic under Florida’s Telephone Solicitation Act (FTSA), but I am not aware of anything at the federal level. That’s not to say there isn’t a federal requirement, but since it has no private right of action enforcement behind it, that could be why there have been no cases. To elaborate:
Most enforcement under the TCAP is done by private right of action. The TCPA has no clear reference to caller ID displays that I am aware of; it more speaks to the technology that cannot be used in contacting certain consumers. The TSR, on the other hand, DOES have a clear provision. In section 310.4, it states that an abusive telemarketing act/practice includes:
Failing to transmit or cause to be transmitted the telephone number, and, when made available by the telemarketer's carrier, the name of the telemarketer, to any caller identification service in use by a recipient of a telemarketing call; provided that it shall not be a violation to substitute (for the name and phone number used in, or billed for, making the call) the name of the seller or charitable organization on behalf of which a telemarketing call is placed, and the seller's or charitable organization's customer or donor service telephone number, which is answered during regular business hours;
Now, when this was written, it was understood that this relates to standard caller ID on a standard telephone call. When the TSR was expanded to officially include texts (which many had already held that interpretation for some time), this becomes a little more questionable. “Telephone number” is not a defined term, so the rule isn’t 100% clear on what that means. At the same time, however, a “Call” is also not defined, nor is what constitutes an “Answer”. While I am not attorney, I could argue that, if a “text” is considered a “call”, then if you can text the short code back and get some sort of response, that “text” is how you “call” the short code, and the response is your “answer”. Ultimately, the TSR is enforced by government agencies (i.e. the FTC or state AGs), so since it isn’t something that can create huge paydays for opportunistic plaintiffs, this type of thing doesn’t come up too often.
The FTSA, on the other hand, DOES have a private right of action provision, which makes it much more appealing to see “enforcement” actions. It states:
It shall be unlawful for any person who makes a telephonic sales call or causes a telephonic sales call to be made to fail to transmit or cause not to be transmitted the originating telephone number and, when made available by the telephone solicitor’s carrier, the name of the telephone solicitor to any caller identification service in use by a recipient of a telephonic sales call. However, it is not a violation to substitute, for the name and telephone number used in or billed for making the call, the name of the seller on behalf of which a telephonic sales call is placed and the seller’s customer service telephone number, which is answered during regular business hours. If a telephone number is made available through a caller identification service as a result of a telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a telephonic sales call was placed. For purposes of this section, the term “caller identification service” means a service that allows a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call and displayed on a device in or connected to the subscriber’s telephone.
Note* that they reference a “telephonic sales call” separately from a “telephone call.”
They clearly define the first term:
“Telephonic sales call” means a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.
This definition not only states that a text message is part of its scope, but it also seems to intentionally recognize that a “telephone call” is separate from a “telephonic sales call.” Logically, one can (and many have) argue that the Florida state law DOES require that, if you use a short code for a caller ID, that short code MUST be able to receive calls (which technology disallows). While this seems to make no sense, my gut tells me that this simply wasn’t a consideration when the amendment was written, and it’s quite possible that yet another amendment will come in the following years. While you would question how this is enforceable when the technology doesn’t allow it, a counter argument could be held that, knowing the requirement, a marketer simply should not have used a short code in Florida.
Alternatively, I could counter argue that the full text of the statute requires the originating telephone number to be transmitted to “any caller identification service in use by a recipient of a telephonic sales call.” That same paragraph goes on to state that caller identification service “means a service that allows a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call”. Note that this, too, references a “telephone call.” Since a telephonic sales call’s definition acknowledges a difference in a telephone call and a text message and the caller ID definition seems to make that same acknowledgement, perhaps this was meant to only apply to a “traditional” phone call.