Florida TCPA Action Survives Motion To Dismiss


David O. Klein, 29 August 2022

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 a 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.