EcMA Applauds West Virginia Senate Judiciary Committee’s Decision Not to Adopt Flawed Mini-TCPA
The Ecommerce Marketers Alliance is thrilled to share positive news for West Virginia consumers and businesses alike. Following thoughtful consideration, the West Virginia Senate Judiciary Committee decided not to move forward with adoption of House Bill 5251 or Senate Bill 500. After House Bill 5251 passed the House with a vote of 98-0 on February 9, 2024, it was referred to the Senate Judiciary Committee for debate along with the similar Senate Bill 500. The West Virginia Legislature adjourned its 2024 session at midnight on March 11, 2024 with no further action on the bill.
During the busy legislative session, EcMA made it a priority to inform the Senate Judiciary Committee of several flaws in the proposed bills, which were nearly identical to legislation originally adopted in Florida in 2021 known as the Florida mini-TCPA. We informed members of the Senate Judiciary Committee of the fact that the original legislation in Florida led to an onslaught of litigation that clogged Florida state courts. This surge of litigation against legitimate businesses, particularly those doing text message marketing, subsequently led the Florida Legislature and Governor Ron DeSantis to adopt substantive revisions to the law in 2023 to correct the litigation abuses. The West Virginia bill that was under consideration mirrored the original 2021 Florida legislation and failed to include the corrective measures that Govenor DeSantis signed into law in 2023. We are pleased that our efforts, along with those of others, contributed to this positive outcome and that West Virginia has learned from Florida’s mistakes.
What Was Senate Bill 500 and House Bill 5251?
Introduced in January 2024, Senate Bill 500 aimed to update West Virginia's telephone consumer protection laws. While consumer protection is a priority, EcMA expressed concerns about the bill's potential impact on legitimate businesses and consumers. Key provisions of the bills included:
Expanded Definitions: The bill broadened the definition of “autodialer” to adopt a definition that was broader than the definition in the federal Telephone Consumer Protection Act, as interrepted by the United States Supreme Court in Facebook v. Duguid, potentially impacting how businesses obtain consent and communicate with existing customers.
Enhanced Caller ID Requirements: SB 500 included stricter caller ID rules, prohibiting spoofing and requiring accurate caller identification without considering the practical impact on text message marketers that use short codes to communicate with their customers.
Call Time and Frequency Restrictions: The bill limited call times to between 8 am and 8 pm (recipient's time zone) and restricted call attempts for the same issue to three within a 24-hour period.
Presumption of Residency: SB 500 established a presumption that calls made to West Virginia area codes are directed at residents or individuals presumed to be in the state at the time of the call.
Why We Opposed SB 500
While consumer protection is paramount, overly broad legislation like SB 500 can have unintended consequences. Our primary concerns with SB 500 mirrored issues observed in similar legislation passed in Florida. These included:
Frivolous Lawsuits: A broad definition of "autodialer" has been shown to lead to a surge in lawsuits from professional plaintiffs and law firms that try to leverage the bill’s statutory damages provision of $500 per message to threatend or file shake down lawsuits and, therefore, are not aimed to remedying actual consumer harm.
Consumer and Business Confusion: Ambiguity regarding the application of key aspects of the bill to the realities of the text messaging marketing ecossytem, including short codes, discourages legitimate busiensses from using text marketing to engage with their consumers, hindering consumers' access to valuable information and offers.
Innovation Chill: Fear of abusive litigation stifles the use of innovative mobile marketing tools, impacting e-commerce growth.
Specifically, we advised the Senate Judiciary Committee that in 2023 Florida had adopted a common sense amendment to its bill that prevented consumers from initiating litigation regarding unwanted text messages without first replying “STOP” to the messages and giving the brand at least 15 days to cease sending the consumer text messages. Florida’s current approach of requiring a consumer to use the tools universally available in the industry (i.e., texting STOP) before resorting to litigation was a cost effective approach to avoiding litigation abuse in Florida. If West Virginia considers a similar bill in the future, we hope that it will adopt a similarly balanced approach.
A Win for West Virginia
By rejecting SB 500 and HB 5251, West Virginia’s judiciary committee prioritizes consumer protection while fostering a healthy business environment. This decision allows legitimate businesses to connect with consumers through effective communication channels.
EcMA Remains Committed
The EcMA remains dedicated to collaborating with policymakers to create balanced solutions that safeguard consumers and promote a thriving ecommerce sector. We applaud West Virginia's commitment to thoughtful legislation and look forward to future opportunities to work together.
