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March Grab Bag

Woman dressed in blue jeans prepare to grab shopping bags placed in front of her.

We have gathered some notable stories from the past month.

Local Government’s Messages Exempt Under Emergency Purposes Exemption

The Telephone Consumer Protection Act (TCPA) contains an exemption for calls made for emergency purposes. During the more than two years that various emergency declarations were in effect due to the Covid-19 pandemic, that emergency purposes exemption was particularly relevant. Earlier this month, the city of Albuquerque invoked that exemption in a motion to dismiss a TCPA lawsuit. The New Mexico district court ruled in favor of the city in Silver v. City of Albuquerque, determining that invitations to join town hall meetings about the pandemic fall within that exemption.

CBD Company Sued for DNC List Violations

Over the last several years, the legal (and semi-legal) cannabis industry has become one of the largest targets for TCPA litigation. Before Facebook, that litigation generally focused on the industry’s particularly frequent use of text message marketing. But following the Supreme Court’s decision narrowing the autodialer definition, TCPA litigation against cannabis businesses have followed the broader trends of focusing on violations of the Do Not Call (DNC) list. Grant v. Limitless X, Inc., a class action in the Eastern District of New York, fits this model as the defendant is accused of marketing its CBD products by sending text messages. But rather than attempting to claim automatic telephone dialing system (ATDS) violations for each of the alleged 100 text messages received, the plaintiff is claiming violations of the Federal DNC Registry.

More FTSA Lawsuits

While ATDS claims over text messaging are no longer a significant source of litigation at the national level, they are a source of risk at the state level, where they comprise the bulk of litigation filed under the Florida Telephone Solicitation Act (FTSA). These include lawsuits against national chains such as Hammonds v. Domino’s Pizza. But the specific precedents governing FTSA litigation is still taking shape.

In Weitz v. Genting New World LLC, the Southern District of Florida court addressed a familiar question for telemarketing litigation: what constitutes sufficient harm to confer standing to sue. This question has been subject of significant and contradictory litigation with regard to the TCPA, with some courts finding that receipt of a single text message constitutes sufficient harm for Article III standing while others find that it doesn’t. In Weitz, the Florida court went with the latter precedent, ruling in favor of the defendant’s motion to dismiss. However, there are few FTSA rulings on this subject so it would be premature to assume that this standard will hold statewide.

State-Level Telemarketing Regulation Amendments

Speaking of the FTSA, amendments to it advanced out of committee in the Florida House of Representatives. If these amendments eventually become law in something similar to their current form, they could be significant. They change the language of the law’s ATDS restrictions from involving the use of “an automated system for the selection or dialing of telephone numbers” to “an automated system for the selection and dialing of telephone numbers”. That change from “or” to “and” could potentially bring the FTSA’s autodialer enforcement more in line with the TCPA’s post-Facebook autodialer enforcement rather than the current free-for-all environment for text messaging litigation. But the legislative process is still in its early stages and there is no guarantee that these amendments will be enacted in their current form or at all. Similar amendments were introduced in the Florida legislature last year and never went anywhere.

New York’s legislature is further along in advancing its own telemarketing amendments. Unfortunately, those amendments make the state’s regulations more severe rather than less. The state Assembly passed an amendment that increased the penalties for violating the state’s DNC list restrictions to $20,000. The measure passed 146-1, which indicates a higher likelihood of eventual passage than the Florida amendments.

We will continue to monitor these developments.