On May 25, 2023, Florida Governor Ron DeSantis signed a significant amendment to the Florida Telephone Solicitation Act (Fla. Stat. § 501.059), sometimes referred to as the Florida mini-Telephone Consumer Protection Act (mini-TCPA). The amendment reverses recent plaintiff-friendly changes to Florida’s telephone solicitation laws by rolling back some of the key provisions of the statute to be more in line with federal standards. This should come as welcome news for companies that communicate with customers and consumers via text and phone. On the other side of the country, however, Washington Governor Jay Inslee signed HB1051 into law on April 20, 2023, amending Washington state’s own mini-TCPA to expand its scope and create higher fines for violations. 

Florida Narrows Its Mini-TCPA

Florida’s mini-TCPA became one of the broadest telephone consumer protection statutes in the country when it was amended in 2021. As noted in a prior legal alert, Florida amended its laws following the Supreme Court’s decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021), which significantly narrowed the definition of an automatic telephone dialing system (ATDS), or autodialer, under the federal TCPA. 

The 2021 amendments broadened Florida’s mini-TCPA to define autodialer to include “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” The amendment also created, among other things, a private right of action, allowing consumers to sue and collect damages up to $1,500 per violation of the statute. Not surprisingly, plaintiffs filed hundreds of putative class actions in the short time the 2021 amendments were in place. That spike in litigation created a backlash to which the Florida Legislature reacted by effectively rolling back the prior amendments almost immediately after they went into effect. 

Specifically, the amended law’s definition of ATDS is once again consistent with the narrower federal standard. As noted above, Florida’s mini-TCPA contained an expansive definition of autodialer that encompassed practically any form of ATDS and required prior written consent from the customers. The amended autodialing restrictions now apply only to “automated system[s] for the selection and dialing of telephone numbers.” Changing the language of an autodialer to a system that both automatically selects and dials numbers will allow businesses to use many forms of ATDS previously banned under the Florida mini-TCPA. 

The newly amended law also has an expanded definition of what constitutes a “signature” sufficient to convey consent to receive telemarketing messages. Customers and consumers can now provide their consent to receive calls and texts through several different methods, including swiping up on Instagram, checking an online box or responding affirmatively to receiving text messages.

Further, and perhaps most importantly to note for businesses, the bill amends the safe harbor provision for text messages. Consumers who do not wish to receive texts from a business can reply with “stop,” and businesses now have 15 days to unsubscribe that user. Only if the customer continues to receive texts after the 15-day mark will the customer have standing to sue. 

Finally, the amendments apply retroactively to any pending action brought under the mini-TCPA that is styled as a class action but is not yet certified as such before the effective date of the amendments. Whether this retroactive change will survive scrutiny by the courts is an open question.

The bill does not change many of the Florida mini-TCPA’s other provisions, including the private right of action, the statutory damages of up to $1,500 per violation or the restriction on “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.” The amendments also retain the limitations on the hours in which communications may be sent and the limit of three messages per 24 hours. 

Washington State Expands Its Mini-TCPA

While the Florida Legislature was at work narrowing the scope of its state TCPA statute, the Washington Legislature was busy broadening its own mini-TCPA. The Washington amendments expand the definition of “automatic dialing and announcing device” to mean a system that “automatically dials telephone numbers and transmits a recorded or artificial voice message once a connection is made.” Further, the definition specifically includes that a “recorded or artificial message is transmitted even if the recorded or artificial message goes directly to a recipient’s voicemail.” This is a broader definition of an autodialer than is indicated in the TCPA (or the Florida mini-TCPA for that matter).

Additionally, one of the biggest changes businesses should be aware of is that the Washington mini-TCPA now applies to anyone who “assists in the transmission” of unwanted “commercial solicitation” subject to the Washington Consumer Protection Act (WCPA). Although there are some exemptions to this general rule, the bill defines “assist in the transmission” as providing “substantial assistance or support, which enables any person to formulate, originate, initiate, or transmit a commercial solicitation when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial solicitation is engaged, or intends to engage, in any practice that violates” the WCPA.

Other key provisions of the amended Washington law include prohibitions on a person from initiating or causing the initiation of a telephone solicitation to a telephone number on the federal Do Not Call Registry. The law also allows for a private right of action to enjoin further violations of the law and increases the damages for repeated violations from $100 to $1,000. 

Importantly, the Washington mini-TCPA does add an affirmative defense for “telecommunications provider” if it both acted in compliance with the federal TCPA and implemented a “reasonably effective plan to mitigate origination initiation or transmission of a commercial solicitation.” 

The legislation will take effect on July 23, 2023. 

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The new amendments to the Florida mini-TCPA will likely result in a decrease in the number of class action filings. On the other hand, Washington could become a new hotspot for litigation against companies that communicate with their customers and consumers via text and phone. Businesses should be aware of these shifting provisions and update their TCPA policies and protocols accordingly.

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