Consumer Plaintiff Says Fla. Mini-TCPA is Constitutional

The Florida Telephone Solicitation Act isn’t unconstitutional, a consumer plaintiff disagreed Monday with CPAP breathing mask maker AeroCare at U.S. District Court for Middle Florida (case 22-cv-1047). In a separate case on Florida’s mini Telephone Consumer Protection Act (TCPA) at the District Court for Southern Florida, a federal judge ruled Oct. 20 that Everglades College must answer a FTSA class action concerning education-related text messages (case 22-cv-22307). AeroCare sent texts asking Tyler DeSouza to order supplies for the breathing machine he no longer owned, even after DeSouza replied “stop” three times and AeroCare responded each time promising no more messages. AeroCare argues that FTSA is too vague, impermissibly restricts speech and violates the U.S. Constitution's dormant commerce clause. "While Defendant suggests 'telephonic sales call' is vague in all applications because the phrase 'soliciting a sale' is undefined, a legislature is 'not required to define each and every word in a piece of legislation to express clearly its will,'" said the plaintiff, citing the 11th U.S. Circuit Court of Appeals in 2021 case Catalyst Pharms v. Becerra. "Persons of common intelligence" can understand what soliciting a sale means, it added. FTSA includes no exceptions covering AeroCare's texts, DeSouza said. FTSA doesn’t unconstitutionally restrict speech, the plaintiff said: Intermediate scrutiny applies since the law restricts commercial speech and FTSA satisfies that standard because the government has substantial interest in restricting unwanted robocalls, “especially after the caller is asked to stop.” FTSA directly advances that interest and is appropriately tailored, DeSouza said. FTSA doesn't violate the dormant commerce clause because Congress authorized states to regulate telemarketing in the TCPA and FTSA doesn't regulate or unduly burden interstate commerce, the plaintiff said. In the Everglades College case, Judge Beth Bloom said the college didn't "provide persuasive authority for the proposition that the FTSA does not apply to educational services” and the court won’t "read that limitation into the statute.” FTSA didn’t specifically carve out education, and consumer protection laws should be construed liberally in consumers' favor, she said. The text messages sent by the college are actionable, Bloom said. "Whether Plaintiff consented or whether the communications sent by Defendant were in response to Plaintiff's inquiry are issues of fact that the Court does not consider at this juncture.” The college's consent language, to which defendant agreed, doesn't “include consent to receive telephonic sales calls,” she added.