Queenie here to break down yet another FTSA text message case – this time hitting the retail vertical. I remember the days I used to shop at Urban Outfitters.
As the Czar keeps warning, it is critical to keep in mind that the FTSA is much much more restrictive than the TCPA. It contains an extremely broad definition of an “autodialer” and unlike the TCPA, no random or sequential number generator needs to be used in Florida.
If your system is determining the sequence in which numbers are to be texted – you are using an autodialer under Florida state law. The FTSA also contains a rebuttable presumption that a sales call or text made to any number with a Florida area code is made to a Florida resident or to a person in Florida at the time of the call. Fla. Stat. § 501.059(8)(d).
In Tooley v. Urban Outfitters, Plaintiff alleges Urban Outfitters blasted marketing text messages “automatically and without any human involvement” and without the proper level of consent. Plaintiff alleges that the platform “automatically made a series of calls to Plaintiff’s and the Class members’ stored telephone numbers with no human involvement….” Plaintiff alleges these calls/text were made into Florida and Urban Outfitters sent the same text messages to other class members within the same district of Florida. As a result, these text messages violate the FTSA and Plaintiff seeks statutory penalties on behalf of a proposed class numbering in the tens of thousands.
As you can see, the text component continues to drive the avalanche of most new Florida litigation. The FTSA’s expansive and ambiguous ATDS prohibitions still apply to all companies doing business with Florida consumers. Companies continuing to do telemarketing in Florida should implement policies and procedures that comply specifically with Florida state law. When dialing numbers with a Florida area code, you must ensure you are securing prior express written consent before calling or texting. Implementing procedures to ensure compliance with the FTSA can also help you avoid litigation risk in other states implementing “mini-TCPA” laws.
Stay safe out there TCPAWorld.