A Return to (Relative) Sanity: Amendments to the Florida Telephone Solicitation Act
Less than two years after amendments to the Florida Telephone Solicitation Act (FTSA) sent shockwaves through the business community and ushered in a flood of litigation, Florida enacted HB 761, which again substantially amends the FTSA. The amendments are a welcomed relief to businesses who communicate with and market to their customers through calls and text messages.
Here’s what you need to know.
How we got here.
During the 2021 legislative session, the Florida Legislature unanimously passed sweeping changes to the FTSA that prohibited companies from making telephonic sales calls (including text messages) using an “automated system for the selection or dialing of telephone numbers or the playing of a recorded message” without the prior expressed written consent of the called party. A violator could incur statutory damages of up to $1,500. The FTSA’s definition of an “automated system” was much broader than the definition of “automatic telephonic dialing system” in its federal counterpart, the Telephone Consumer Protection Act, and potentially encompassed a dizzying array of software and systems that had previously not been subject to marketing regulations at the state or federal level. This predictably unleashed a deluge of consumer putative class action claims in courts across the country and left companies scrambling for compliance solutions.
What the 2023 amendments change.
HB 761 contains five key amendments that radically shift the FTSA’s scope and impact.
An automated system must both select and dial telephone numbers. With a simple change from the word “or” to “and,” HB 761 drastically limits the types of technology covered by the FTSA. Under the prior definition, click-to-dial technology, CRM systems, and other manual systems were arguably covered because they used automation in the selection or dialing process. Now, unless a system automates both the selection and dialing of telephone numbers, the FTSA does not apply.
Solicited telephonic sales calls are no longer prohibited. As previously drafted, the FTSA prohibited a business from using an automated system to call customers without prior express written consent, even if the customer requested the call. HB 761 now limits liability to “unsolicited” calls, meaning that businesses can now safely call and text customers with whom they have established business relationships or who otherwise expressly request the contact.
Businesses may obtain prior express written consent through “[a]n act that demonstrates express consent.” Before HB 761, there was substantial uncertainty about whether checking a box on a web form or responding affirmatively to a text message was sufficient to obtain prior express written consent. HB 761 puts this issue to bed, expressly stating that a “signature” for purposes of prior express written consent, includes “[a]n act that demonstrates express consent, including, but not limited to, checking a box indicating consent or responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail solicitation.”
Businesses have 15 days to honor “stop” requests from consumers receiving text messages. HB 761 requires that, as a condition precedent to filing a lawsuit based on unsolicited text messages, the consumer must reply “STOP” to the sender and allow the sender 15 days to cease sending text messages. A sender is then liable only if it continues sending text messages after the 15-day period expires.
The amendments apply retroactively to pending putative class actions. All of HB 761’s amendments apply prospectively from the effective date of the bill and also retroactively to any putative class action filed under the FTSA where the court has not yet granted class certification.
What this all means moving forward.
Businesses contacting customers with whom they have an established business relationship or who otherwise expressly solicit those communications are now exempt from the automated system provisions under the FTSA. Marketing text messages, whether solicited or unsolicited, are also safe so long as the sender has a robust internal do-not-call system that honors stop requests within 15 days. Overall, this should lead to massive reduction in prospective FTSA claims, especially on a class basis.
Telemarketers who make unsolicited cold calls to consumers are still at risk for voice and prerecorded calls using predictive dialers or similar technology that automate both the selection and dialing process of those calls.
Businesses facing pending class actions are not yet in the clear. The retroactive applicability of the statute is guaranteed to draw challenges from plaintiffs who have pending putative class actions, and it will take time for courts to weigh in.
For guidance on these amendments to the FTSA, please contact your Quarles attorney or:
Zac Foster: (813) 387-0273 / firstname.lastname@example.org
Julia Wischmeier: (813) 384-6726 / email@example.com