No matter how many times she said “stop”, the texts kept coming. They made jokes and promises; they told her she was about to run out. “Hello,” one said in all caps. They came throughout the summer of 2021, at 10:03 a.m. or 1:46 p.m. or 8:01 p.m.
The messages sent to Cheri Aul’s cellphone weren’t from an irritating ex-lover or old acquaintance – they were from David’s Bridal. Aul, who is unmarried and was not a customer of the formal wear retailer, started receiving the text messages when she changed carriers and got a new number. In August, she had found a phone number listed on the retailer’s website, under “How to unsubscribe.” She texted “stop” every time she received another text announcing a sale on bridesmaids dresses or a collection of fall shawls.
When that didn’t work out, she hired a lawyer.
“It’s become excessively irritating, and as some would say, even bordering on abusive,” said Aul, 46, who lives in Clearwater and works at a library.
Aul’s lawsuit, filed in September in Pinellas-Pasco Circuit Court as a class action, is one of the first to be brought under a new law that expands the ability to prosecute robocallers and robotexters. It could also be an early test: In a motion to dismiss the case, lawyers for David’s Bridal argued this month that the law – which was passed by the Florida legislature and went into effect on last year – is unconstitutional.
For those who have lobbied for the law, it’s an exciting new weapon in a battle against rogue telemarketers, whether they’re scammers or legitimate companies going overboard. Among the supporters is Aul’s attorney, Billy Howard, the founder of Tampa consumer protection office. howard calls robocalling a “massive invasion of privacy” which, if left unchecked, would turn into an “apocalyptic disaster”.
“We’re very confident that our white hats are in place correctly, and we’re dealing with a lot of bad guys, and now the ammunition we have is very good law,” he said.
Aul approached Howard as a last ditch effort. She said she expected to be told there was nothing she could do but ignore and delete the messages. She had wondered if she could sue David’s Bridal under the Telephone Consumer Protection Act, a 1991 federal law that established the National Do Not Call Registry. But she didn’t know that Florida lawmakers had taken up the issue following a ruling limiting federal law.
Florida has long been a hotbed for telemarketers and their targets, a reality Howard attributes to a population that includes many older residents. Florida’s primary telemarketing laws date back to the 1980s, when Florida became the first state to establish a do-not-call list. A few years later, the Telephone Consumer Protection Act limited how telemarketers could use automatic dialing systems and pre-recorded messages. This allowed people to sue telemarketers who broke these rules or violated the Do Not Call list — although telemarketers themselves controlled this list for more than a decade, before the Federal Trade Commission took it over.
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The government can prosecute offenders, but such cases are relatively rare. Andrew Cove, a former Florida assistant attorney general who helped create the state’s 1989 telemarketing law, said his office generally only handles cases that also involve fraud. He has since become a defense attorney for telemarketers. These days, government agencies “only get involved if there are millions of (violations) going on and they want to send a message,” Cove said. In 2013, the Federal Trade Commission hit a St. Petersburg home money lender with what was then the biggest don’t call fine ever: $7.5 million for more than 5 million violations.
But for the most part, Cove said, telemarketing lawsuits happen in private litigation. because of the way the laws are written and because regulators haven’t made it a priority.
Thanks to law enforcement and self-policing, most legitimate businesses now track do-not-call lists, experts say. Howard noted that many scammers still call numbers on the lists, although the scammers would have bigger legal issues than telemarketing violations, if caught.
Now, robocalls are at the top of the list of telemarketing problems. The Florida Department of Agriculture and Consumer Services, which maintains the state’s Do Not Call List, used to categorize telemarketing complaints under Do Not Call. In 2017, for example, it registered more than 19,000 complaints on the issue. More recently, a spokesperson said, it changed its categories to reflect that not all complaints are related to a breach of the registry. Last year, the agency documented 13,761 unsolicited communications complaints, and only 3,719 of those explicitly related to the do-not-call list.
Spam calls remain at the top of the Federal Communications Commission’s list of consumer complaints. T-Mobile reported that scams and unwanted robocalls more than doubled last year compared to 2020. A 2018 Washington Post The story reported that the telemarketers “outwitted the government and completely destroyed the do not call list”.
Whether robocalls in general violate federal law has been the subject of debate. Automatic numbering systems have been banned, but the courts have been divided on what an “automatic numbering system” is. Last April, the United States Supreme Court handed down a ruling that gave a narrow definition: to be considered an autodialer, a system had to use a random or sequential number generator. Calling bots using other systems that stored and dialed numbers were in the clear.
While the court was considering the case, Florida lawmakers introduced a bill to prevent telemarketers from using any system, random or otherwise, to automatically call or text consumers without their consent. Like the federal law, it allowed people to sue telemarketers for $500 per violation, or $1,500 if they could prove the telemarketers knew what they were doing, plus attorneys’ fees. Three weeks after the Supreme Court decision, state senators passed the bill. The House passed it a week later.
The effects of the new law are still being felt, experts said. Cove said his Fort Lauderdale firm had handled a dozen such cases since late last year, more than usual. He expects an influx of lawsuits as more people learn about the law. Howard said he expects the opposite — that most companies will notice the implications of the first class action lawsuits under the new law and change their practices.
But they can agree that few Floridians are likely to pity telemarketers.
“Obviously these marketers irritate people, especially if it’s a phone call,” Cove said. “They have no allies for the most part, other than people like me who defend them.
“On the other hand,” he added, “when plaintiffs’ attorneys are getting a half-million dollar or a million dollar fee and they really only represent one consumer and file a class action lawsuit…maybe there is a point where it goes too far.”