Sunday, February 23, 2014

FYI: MD Fla Holds No Consent Required Under Florida Security of Communications Act for Recording of Business Calls

The U.S. District Court for the Middle District of Florida recently held that the Florida Security of Communications Act, Fla. Stat. § 934.10, et seq. (“FSCA”), generally allows companies to record business calls conducted in the ordinary course of the companies’ business with the consumer’s consent.


Specifically, the court held that under the FSCA a business does not have to obtain consent to record a call, if:  (a) the communication is recorded by equipment furnished by a provider of wire or electronic communication service in the ordinary course of its business; and  (b) the call is recorded in the ordinary course of business.


A copy of the opinion is attached. 


A putative class action was filed by credit card holders who accused a credit card accounts servicer (“Servicer”) of recording telephone calls without their consent. 

In 2010 and 2011, Servicer placed phone calls to plaintiff credit card holders regarding their credit card accounts.  Servicer has a policy to record all incoming and outgoing calls from their inception until their termination. 


Plaintiff credit card holders alleged that Servicer never obtained their consent to record any phone calls placed to them.  Plaintiff credit card holders filed a putative class action alleging that Servicer’s recording of telephone conversations, without consent, was a violation of the FSCA.


As you may recall, the FSCA makes it a crime to intentionally intercept any electronic communications without the prior consent of all parties to the communication.


Servicer moved for summary judgment arguing that its recording and interception actions were legal due to FSCA’s “business extension exception.”


The FSCA’s business extension exception applies when a communication is intercepted by any telephone or telegraph equipment furnished by a provider of wire or electronic communication services in the ordinary course of its business, and the call is intercepted in the ordinary course of the interceptor’s business.  See, e.g., Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215, 217 (11th Cir. 1991).  The term “intercept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” §934.02(3), Fla. Stat.


However, the plaintiff credit card holders argued that Servicer’s recording device was used to intercept the call and a recording device is not “telephone equipment furnished by a provider of wire or electronic communication services.” 


On the other hand, Servicer contended the telephone system was the intercepting device because it acquired the contents of the communication while the recording device merely recorded the contents of the telephone conversations.   Servicer further argued that its telephone system was telephone equipment furnished by an electronic communication service within the meaning of the business extension exception rule.


The Court examined at length whether the Servicer’s telephone system or a recording device intercepted the telephone calls. The Court determined Servicer’s telephone system equipment intercepted the call.  The Court made this determination based upon the fact the recording device had no function unless it was attached to a telephone system and it could not be used to listen to phone calls.


The Court then examined whether its phone system was provided by a wire or electronic communication services in its ordinary course of business. The Court held the phone systems were provided by a business of wire or electronic communication services as the phones were purchased from Avaya and Verizon.  The Court further held that Avaya and Verizon are providers of wire or electronic communication services.


The Court next examined whether Servicer intercepted the calls in the ordinary course of its business.  Ruling in favor of Servicer on this issue, the Court reasoned the intercepted calls concerned charges on plaintiff credit card holders’ accounts and these calls were not made for any other reason besides Servicer’s business interests. 


Accordingly, the Court held that the business extension exception of the FSCA applied, and granted Servicer’s motion for summary judgment.





Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
(312) 551-9320
(312) 284-4751
(312) 493-0874


Admitted to practice law in Illinois



          McGinnis Wutscher Beiramee LLP





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