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Florida Court Weakens TCPA Protections


There is an interesting and somewhat troubling contradiction happening in our country today. On the one hand, governments and even cell phone companies are starting to recognize what a scourge that robo-calls and unwanted text messages are to consumers.

These calls, some of which are pure spam and some which are legitimate but annoying and unwanted calls, waste consumers’ time, violate their privacy, and waste valuable talk and data time that consumers pay for on cell phone plans.

Yet, as governments threaten to crack down on these calls, and as cell phone providers start to implement ways to help consumers identify and ignore these calls, courts seem to be going the opposite direction. Courts continue to weaken the Telephone Consumer Protection Act (TCPA), the law that allows consumers to sue companies that send unwanted texts and which call using pre-recorded messages.

Court Strikes Down Class Action

In a recent case, a man sued when he received an unwanted text from his former attorney. Although one text is certainly not a huge amount of harm, it still did entitle him to file a class action on behalf of other consumers who may have received such a text from the attorney.

This is not uncommon—class actions allow plaintiffs who by themselves may not have sustained enough damage to file a lawsuit to enforce federal laws on behalf of all who may have been victimized in the same way.

However, the 11th circuit court (covering and including Florida) said that the man’s alleged harm of receiving just one call simply was not “bad enough” to warrant a lawsuit. The court said the man had not sustained enough harm to have any damages, even though the TCPA contains no minimum requirement.

The TCPA says that every illegal pre-recorded call, or text message, entitles a consumer to $500-$1,500 in damage. Despite that being expressly in the TCPA, the federal court did not allow the man to continue with his class action lawsuit.

The court compared receiving an unwanted text message to having someone wave a flyer in your face as you are walking down the sidewalk, calling it merely an “annoyance.” The court did say that a single text message could, in certain situations, be actionable, such as when it “shattered” someone’s “domestic piece,” both phrases that do not exist in the TCPA.

Conflict Between Courts

Other federal courts have found differently. For example, the Ninth Judicial Federal Circuit in a similar case found that any text, and even a single text, breaches a consumer’s privacy and “disturbs the solitude” of consumers.

Because there is a split in opinion between federal courts, it is likely that the United States Supreme Court may take it up, if the matter is appealed to them. In the meantime, consumers are advised to keep track of pre-recorded messages, or unwanted texts, and make a note of how these intrusions affect their solitude, peace and privacy.

Contact the Miami consumer rights attorneys at Jacobs Legal today if you are in foreclosure or being harassed by debt collectors.


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