TAKEAWAYS

• The proposed amendment significantly tightens the conduct that constitutes a violation of the Florida Telephone Solicitation Act (FTSA).
• The amendment narrows the definition of “autodialer,” limits violations to “unsolicited calls” and broadens the qualification for prior express written consent.
• The proposed amendment also requires consumers to provide a 15-day notice to the texter before suing for unsolicited texts.

Like the Telephone Consumer Protection Act (TCPA), navigating the Florida Telephone Solicitation Act (FTSA) can be a minefield for businesses engaging in telemarketing and text marketing to Florida residents and those that conduct business in the state. The FTSA, commonly dubbed the mini-TCPA, prohibits using certain automated dialers to call (or text) consumers without their consent and enables consumers to recover $500 per call. The FTSA also provides for up to $1,500 in treble damages for willful or knowing violations, plus reasonable attorney’s fees and costs. In July of 2021, the Florida legislature enacted language that broadened the language in the statute, distinguishing it from its federal counterpart, which resulted in a floodgate of litigation. As a result, FTSA violations have the potential to be financially devastating, especially for businesses underinsured against exposure.

Proposed Changes to the FTSA
Recently, the Florida Legislature passed an amendment to the FTSA, which, if signed by Florida Governor Ron DeSantis, would dramatically decrease the scope of liability under the FTSA. Proponents of the bill believe that the amendment reaches a delicate balance between protecting consumers from harassing telemarketers and allowing businesses to participate in good-faith telemarketing. On the other hand, opponents warn that the amendment would enable telemarketers and companies to swarm Floridians with unsolicited calls. Nevertheless, understanding the reach and application of the FTSA is critical for any business engaged in telemarketing and text marketing to Florida residents.

“Autodialer” Definition Narrowed
First, the amendment significantly narrows the scope of an automated dialer. Namely, amending the phrase “automated system for the selection or dialing of telephone numbers” to “automated system for the selection and dialing of telephone numbers.” Before the amendment, the FTSA contained one of the broadest definitions of autodialer in the country. This amendment brings the mini-TCPA in line with its federal counterpart; this also has the effect of allowing the application of the significant body of case law interpreting the meaning of that statute.

Only “Unsolicited” Calls Constitute a Violation
Second, while the FTSA currently prohibits using automated systems for any telephonic sales call, solicited or unsolicited, the amendment proposes limiting the prohibition on the use of automated systems only to unsolicited telephone sales calls. Under the statute, unsolicited calls, among other things, are calls made other than in response to an express request of the person called or to a person with whom the telephone solicitor has a prior or existing business relationship. Clearly, the Florida Legislature intends to relieve pressure on companies currently defending FTSA suits alleging mere technical violations of the statute.

Signature Requirement Broadened
Third, the amendment expands the definition of express written consent. Under the statute, the signature requirement for prior express written consent is expanded to include affirmatively responding to receiving text messages to an advertising campaign or an e-mail solicitation or even checking a box indicating consent.

Safe Harbor Provision
Fourth, the bill adopts certain prerequisites to bring a claim. Before a party can bring a claim, the individual receiving the message must (1) ask for the text messages to stop; and (2) allow the caller 15 days to stop sending text messages. Within 15 days of the “receipt of such notice, the telephone solicitor shall cease sending text message solicitations to the called party,” except to confirm receipt of the notice. Thus, a consumer can only bring a claim under the FTSA if the telephone solicitor sent text messages after expiration of the 15-day safe harbor. As a practical matter, the amendment dramatically reduces exposure to claims based on a single violation of the FTSA.

Effective Date
Lastly, the changes apply to actions started on or after the effective date of the act and any currently pending putative class action in which the class is not certified on or before the effective date of the act. Although good news for businesses in litigation pending class certification, the retroactive effect of the amendment will almost certainly be questioned in court.

Conclusion
The constantly changing landscape of the FTSA has made it difficult for even the most well-intentioned businesses engaging in telemarketing to ensure compliance, opening the door for lawsuits based on mere technical violations to be filed against businesses acting in good faith. Despite the Eleventh Circuit’s business-friendly stance, holding that consumers who receive a single text message do not have standing to bring claims, businesses should remain diligent about compliance efforts. Moreover, notwithstanding the potential chilling effect of the FTSA amendment on unsubstantiated claims, businesses have more reason to stay prepared for anticipated litigation of FTSA claims. Notably, the FTSA applies to all businesses nationwide that market by telephone calls and text messages to Florida residents, even if they are not organized under Florida law and have no physical presence in Florida. Thus, all businesses should review their insurance policies to ensure coverage and review their internal telemarketing policies and agreements with any vendors used to contact consumers to ensure compliance with the FTSA, applicable state laws and the national Do Not Call Registry.

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