Recently, a Telephone Consumer Protection Act (“TCPA”) case was filed against Sunflora, Inc. (“Sunflora”) in the Middle District of Florida for allegedly violating the prerecorded voice provisions of both the TCPA and Florida Telephone Solicitation Act (“FTSA”). The TCPA is a federal statute that restricts certain types of telemarketing communications. The FTSA, colloquially known as a “Mini-TCPA,” is Florida’s own set of telemarketing laws designed to regulate the delivery of intrastate telemarketing communications. Numerous complaints under the TCPA and its state analogs are filed across the country every day. To make matters worse for the telemarking industry, the rate at which TCPA cases are being filed this year has only increased.
In Carroll v. Sunflora, Inc., Plaintiff alleged that she received a call on her cell phone advertising Sunflora’s CBD products. Because the call utilized prerecorded voice, and Sunflora had not obtained her consent to be contacted, it appears that the marketing call may have been sent in violation of both the TCPA and FTSA. As our readers know, TCPA cases resolved in favor of the plaintiff allow for class members to recover damages of $500 to $1,500 per violation. In the wake of the Supreme Court’s landmark decision in Facebook v. Duguid, telemarketing plaintiffs are relying less on alleged violations of the TCPA’s autodialer provisions and more on claims involving prerecorded and/or artificial voice. Given the foregoing, it is more important than ever for those engaged in nationwide telemarketing to secure consumer consent before placing prerecorded voice calls.
The Facts Alleged in the Sunflora TCPA Case
Sunflora is a Florida-based company that sells CBD products. In her TCPA case, Plaintiff maintains that she received a telemarketing call promoting a sale at one of Sunflora’s stores. Plaintiff alleges that the subject call utilized a message that “was recorded prior to it being utilized during the call.” Plaintiff further alleges that the prerecorded call utilized a “generic sounding voice.” At no point, Plaintiff claims, had she provided Sunflora with her consent to be contacted utilizing prerecorded voice.
As our readers are aware, the allegations in the Sunflora TCPA case are general recitations that plaintiffs regularly employ in their prerecorded voice TCPA Complaints. Both the TCPA and FTSA allow for the recovery of statutory damages in the amount of $500 per violation. However, plaintiffs, such as Ms. Carroll, regularly ask courts to find that the allegedly violative conduct was willful, thus entitling them to $1,500 per violation.
Why is the Sunflora TCPA Case Important to Your Business?
As previously mentioned, the Facebook decision has made prevailing in certain TCPA cases more complicated for plaintiffs. Specifically, many TCPA plaintiffs are having difficulty establishing that equipment employed by a defendant qualifies as an automatic telephone dialing system (“ATDS”). Because of this, plaintiffs are relying on what were previously less commonly utilized provisions of the statute. Now that the framework for prerecorded TCPA cases has been established, an increasing number of these claims have been filed this past year. Because these TCPA cases are usually brought as class actions, defendants face massive potential judgments if the class is certified – even at the statutory minimum of $500 per violation.
Against this backdrop, companies that engage in telemarketing must maintain and enforce proper TCPA and Mini-TCPA compliance procedures. It is more important than ever that telemarketers ensure that they acquire a consumer’s prior express written consent if they intend to place certain marketing calls.
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