Continuing the trend of state interest in telephone and text message marketing regulation, this week Maryland and Florida took diverging approaches to amending their existing telephone and text message marketing laws (so called "mini-TCPAs"). In Maryland, Governor Moore signed into law sweeping amendments to the state's existing telemarketing law that will greatly expand industry obligations when calling or texting consumers, while in Florida the legislature adopted narrowing amendments that will, if signed by Governor DeSantis, substantially restrict the scope and substance of the harshest mini-TCPA in the nation.
While laudable at first glance, Maryland's "Stop the Spam Calls Act of 2023" will in effect introduce vagueness and uncertainty regarding what telephone and text message marketing activities are prohibited and increase the likelihood of nuisance suits that for years have plagued federal TCPA compliance.
Principally, Maryland's mini-TCPA prohibits making or causing to be made without the "prior express written consent" of the called party a "telephone solicitation" – which is defined as a "communicat[ion] by telephone with residents of Maryland" to, among other things, "sell, lease, or rent goods or services" – using an artificial/prerecorded voice or "automated system for the selection or dialing of telephone numbers." And while most of these terms are defined and applied in a manner consistent with federal telemarketing rules, the "automated system" term is not, with no further guidance or interpretation being provided on its similarities to or differences from the TCPA's "autodialer" term. Maryland's new law thus opens the door to arguments that a party's dialing or texting platform will qualify as an "automated system" even if it is not a federally defined "autodialer" and only selects telephone numbers from a predetermined list or where the calling party manually selects or dials a telephone number to be called or texted – arguments that have been successfully advanced in other states with similarly vague "automated system" terminology, including under the Oklahoma mini-TCPA, which uses the same "automated system" term.
The Maryland Act also implements several other critical amendments, including:
- Requiring the calling party to transmit its telephone number and name to any caller ID service being used by the called party;
- Prohibiting the calling party from intentionally displaying a different caller ID number for purposes of defrauding the called party;
- Prohibiting the calling party from placing calls or sending text messages outside the hours of 8:00 a.m. to 8:00 p.m. at the called party's location;
- Prohibiting the calling party from placing more than three calls or sending more than three text messages to the same called party during a 24-hour period "on the same subject matter or issue;" and
- Prohibiting the calling party from engaging in call spoofing.
Under the Act, which is set to take effect January 1, 2024, a violation of the new rules will constitute a violation of Maryland's Consumer Protection Act, under which Maryland's Consumer Protection Division, the Maryland Attorney General, or any person injured by a violation may bring an action to recover damages.
Enacted less than two years ago in the wake of the Supreme Court's landmark ruling in Facebook, Inc. v. Duguid, which narrowly interpreted the federal TCPA's autodialer term, the Florida Telephone Solicitation Act ("FTSA") – along with its overbroad and ambiguous autodialer definition, strict consent standards, and private right of action – has been a focal point of telemarketing litigation. However, Florida now appears poised to remediate the FTSA's negative effects, with both chambers of the legislature passing amendments which, if signed by the Governor, will significantly restrict the scope and substance of the FTSA in several ways.
Perhaps of most importance, the proposed changes would limit the types of equipment that fall within the FTSA's prohibitions. Currently, the law extends to any "automated system for the selection or dialing of telephone numbers." However, the revised statute would apply only to any "automated system for the selection and dialing of telephone numbers," effectively eliminating arguments that a dialing or texting platform falls under the law even if the calling party manually selects or dials a telephone number to be called or texted. The proposed amendments would also confirm a broad definition of the "signature" that is required to obtain a party's prior express written consent to place calls via automated systems, explicitly stating that acts such as "checking a box" or "responding affirmatively to receiving text messages" qualify for purposes of obtaining a party's affirmative consent to a disclosure that includes the statements required under the law's prior express written consent requirements.
Notably, with respect to text messages specifically, the amendments would revise the law to require any consumer who wants to file an FTSA lawsuit to first provide 15 days' advance notice to the texting party by responding "STOP" to the message received. If no further messages are sent in response to the opt-out request, the consumer would not be allowed to file their lawsuit. Critically, these amendments would apply retroactively to any pending FTSA action, provided the lawsuit has been styled as a class action and the class has not been certified prior to the amendments' effective date.
With the amendments now passed by both the Florida House and Senate, the bill will be presented to Florida Governor DeSantis, who will have up to 15 consecutive days following presentment to sign or veto the bill. If no action taken in those 15 days, the bill will become law.
These latest bills in Maryland and Florida show how telephone and text message marketing continue to be of interest to state governments. And when these state laws are combined with the federal TCPA and other telemarketing regulations, compliance can be difficult. Thus, taking preemptive measures at this time to ensure telemarketing compliance can be beneficial both now and in the long run. Please contact us if you have any questions about these new and proposed rules or if you would like to speak about implementing a compliant telephone and text message marketing program.