Governor DeSantis Signs FTSA, Aligning with TCPA
As detailed in a previous article, last month Florida Governor Ron DeSantis signed a significant amendment to his state’s mini-TCPA law, the Florida Telephone Solicitation Act (FTSA), that reversed earlier plaintiff-friendly amendments to the FTSA by rolling back the more extreme aspects of those amendments to bring the FTSA more in line with the TCPA.
Clearly, this development was welcome news for any company seeking to communicate with Florida consumers via text and phone. However, while Florida lawmakers worked on narrowing the scope of the FTSA, their counterparts in Washington were busy doing the exact opposite.
Governor Inslee Approves Bill Against Washington's Robocalls
On April 20, 2023, Washington Governor Jay Inslee signed HB1051 into law, which expanded the scope of Washington’s mini-TCPA law, the Washington Consumer Protection Act (WCPA) and increased penalties for violations. The amendments expand the definition of “automatic dialing and announcing device” (ATDS) to mean a system that “automatically dials telephone numbers and transmits a recorded or artificial voice message once a connection is made,” and specifically states that a “recorded or artificial message is transmitted even if the recorded or artificial message goes directly to a recipient’s voicemail,” thus covering Ringless Voicemail transmissions. This definition is far broader than that of the TCPA or the newly amended FTSA.
How the WCPA Impacts Companies
While the overly broad ATDS definition is bad enough, another aspect of the newly amended WCPA has the potential to be even more impactful to companies seeking to interact with consumers in Washington state. The WCPA now applies to anyone who “assists in the transmission” of an unwanted “commercial solicitation.” Although there are some exemptions to this general rule, the WCPA defines “assist in the transmission” as providing “substantial assistance or support” in transmitting a marketing call or SMS message with the knowledge that it violates the WCPA. This addition places dialing and texting platforms squarely in the crosshairs of Washington class action attorneys.
On the plus side, the newly amended WCPA includes an affirmative defense for a telecommunications provider if it both acted in compliance with the federal TCPA and implemented a “reasonably effective plan to mitigate origination initiation or transmission of a commercial solicitation.”
The recent amendments to the WCPA also allow for a private right of action to enjoin further violations of the law and increases the damages for repeated violations from $100 to $1,000. The amendments will take effect on July 23, 2023.
While the new amendments to the FTSA will stem the tide of class action filings in that state, it appears as though Washington will be joining Oklahoma to become the next hotspot for min-TCPA litigation. Companies marketing to consumers in those states should conduct their affairs accordingly.