Hi TCPAWorld!
A Florida resident named Ronald Hansen (“Plaintiff”) has filed a class action lawsuit against cosmetic and nail-care brand Dashing Diva USA, Corp. alleging a violation of the Florida Telephone Solicitation Act (“FTSA”). See the full complaint here: Ronald Hansen v. Dashing Diva USA Complaint.
Plaintiff alleges he received the below promotional text message from Dashing Diva:
The complaint alleges that the text message transmitted the short code 73707 to Plaintiff’s caller identification service. It further alleges that this short code is completely incapable of receiving inbound telephone calls.
Plaintiff seeks to represent a class defined as:
All persons and entities that reside in Florida whose caller identification service was transmitted a telephone number that was not capable of receiving telephone calls when Dashing Diva Text Message Sales Calls were made to them for the four years prior to the filing of the Complaint.
The FTSA Caller ID rules state:
“If a telephone number is made available through a caller identification service as a result of a telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller.”
What makes many of these FTSA Caller ID filings interesting is how the plaintiff’s counsels almost always (as done here) explicitly attempt to bypass the FTSA’s mandatory notice-and-cure period— Fla. Stat. § 501.059(10)(c). Under § 501.059(10)(c), before a called party can bring an action for damages for text message solicitations, they must notify the solicitor that they do not wish to receive text messages by replying “STOP.” The solicitor then has 15 days to cease transmissions.
This plaintiff claims that the Caller ID Rules apply universally to all telephonic sales calls, regardless of whether they are consented to or solicited. Because the rule applies to any telephonic sales call, the plaintiff claims that Caller ID violations cannot be cured by the simple cessation of the calls themselves and are not subject to the pre-suit notice requirement.
Okay…………but…………………………. section 10(c) starts off with:
“Before the commencement of any action for damages under this section for text message solicitations, the called party must notify the telephone solicitor that the called party does not wish to receive text messages from the telephone solicitor by replying ‘STOP’ to the number from which the called party received text messages from the telephone solicitor.”
Then it goes on to specify that:
“The called party may bring an action under this section only if the called party does not consent to receive text messages from the telephone solicitor and the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice to the telephone solicitor to cease such text messages.”
But sure, let’s hodgepodge pieces of 10(c) together to completely erase a statutory prerequisite passed by the legislature.
The text of Section 10(c) seems clear enough to me. It applies to any action for damages under this section for text message solicitations. It doesn’t say “except for Caller ID claims.”
But we will see how this court decides to treat this issue.
Even setting the notice/cure issue, the number at issue is a short code number. Not a telephone number. We’ve talked about that before: SO WHAT’S UP WITH ALL THESE “I CAN’T CALL BACK THE NUMBER THAT TEXTED ME” CASES: The Good, the Bad, and the Ugly of the New (Kinda Dumb) FTSA and OTSA Theory Clogging Court Dockets… – TCPAWorld
And look at the exact wording of the Caller ID rule the plaintiff is relying on: “If a telephone number is made available…” Since short code numbers are not telephone numbers, there is zero requirement under the statute for them to be capable of receiving inbound voice calls.
The legislature was clearly thinking about traditional voice calls when they drafted the callability requirement to ensure consumers could call a business back—not unidirectional text channels.
We’ll see how far this one gets. Subscribe to keep up to date!
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