TCPA Does Not Preempt State Telemarketing Statutes

A Florida Appeals Court recently upheld a permanent injunction and civil penalties under state telemarketing law against a Florida-based retail business for making prerecorded calls via an automated dialing system to 73 consumers on Florida’s do-not-call list. The Florida District Court of Appeal, Fifth District upheld the lower court’s rejection of the defendants’ claim that the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, preempted Florida’s more restrictive telemarketing laws. While this was a question of first impression in Florida, courts in at least two other states, Minnesota and Indiana, similarly have held that the Federal government has declined to exercise complete preemption over telemarketing.