State law on phone solicitations not preempted, rules Florida Court of Appeal

The federal Telephone Consumer Protection Act does not preempt a state law governing phone solicitations, the Florida Court of Appeal has ruled.

The state filed a complaint accusing the defendant, which operates a chain of retail establishments, of violating state law in making telephone

The defendant claiming that the law was preempted by the federal statute.

But the court disagreed.

"Certainly if Congress had intended a complete preemption of other state laws, that intent could easily have been manifest as part of the statute," the court said. "Moreover the language used in subsections (e)(1) and (f) of the TCPA makes it clear that Congress did not intend to occupy the field, at least with respect to the disclaimers to that effect contained in those provisions.

We conclude, therefore that [state law] does have significant vitality both in the regulation of unsolicited telephone sales solicitations and in the improper use of prerecorded messages and automated dialing machines described in the statute."

The defendant also argued that because the calls originated in California, the Florida courts didn't have jurisdiction over them. But the court rejected this argument.

"[The defendant] suggests, in essence, that the Florida statute might be fully avoided by the simple expedient of taking the automated machine to a different state, and having the calls to Florida consumers made there. [But] the complaint clearly indicates that this cause of action accrued in Orange County, Florida, because [the defendant] has a commercial business in Orange County, and that [it] was making or causing to be made telephonic sales calls to customers in Orange County, Florida."

TSA Stores, Inc. v. Department of Agriculture and Consumer Services (Lawyers USA No. 9935823) Florida Court of Appeal No. 5D06- 1775. April 20, 2007.

Credit: Lawyers USA Staff