Using Text Messages for Marketing? Proceed with Caution in Florida
Many businesses let out a collective sigh of relief when the Florida Legislature’s amendments to the Florida Telephone Solicitation Act (FTSA) went into effect in May 2023. These amendments looked to bring an end to a tumultuous two-year flood of FTSA lawsuits. However, despite these welcomed and much needed changes, businesses are not in the clear just yet as there has been a wave of new class action claims focusing on the FTSA’s anti-spoofing restrictions.
The FTSA’s Anti-Spoofing Provision
According to section 501.059(8)(b), Florida Statutes, if a telephonic sales call results in a telephone number being displayed to the call recipient, that telephone number must be capable of receiving a return call and must connect the call recipient to the telephone solicitor. Basically, if you make a telephonic sales call to a consumer, then that consumer needs to be able to call you (or the solicitor acting on your behalf) back using the number that is displayed to the consumer. Sounds simple enough, right?
Here’s the wrinkle
The FTSA defines a “telephonic sales call” to include not only telephone calls, but also text messages and voicemail transmissions. See Fla. Stat. § 501.059(1)(i). So, although it is unlikely that the Florida Legislature meant to include marketing text messages in the anti-spoofing restrictions, they are seemingly subject to the same restrictions. If so, marketing text messages covered by the FTSA must come from telephone numbers capable of receiving a return call from a consumer that connects the consumer with the telephone solicitor.
Why that’s a major problem for businesses
Many of the platforms and systems that businesses use for text message marketing are not configured to allow a recipient to call back the sender’s number. This is true both when the texts are sent from shortcode and ten-digit numbers.
Armed with this knowledge, enterprising professional plaintiffs have been bringing droves of lawsuits (generally pled as class actions) claiming they received a marketing text message but were unable to call back the sender’s number.
And like other FSTA claims, companies face statutory damages of $500-$1,500 per text message, plus attorneys’ fees, if found liable. Because these claims are novel, courts have not yet weighed in on the potential defenses. This leaves businesses in costly limbo in terms of compliance while the cases work their way through the courts.
How businesses can mitigate risk
Other than shutting down Florida text message marketing efforts, the only way for businesses to totally avoid these claims would be to ensure that their marketing text messages come from a telephone number that is capable of being called back and connecting the caller to the business. Therefore, any businesses who are sending marketing text messages that are governed by the FTSA should contact their texting platform vendors to see what solutions are available for complying with this provision.
For guidance on these amendments to the FTSA, please contact your Quarles attorney or:
Zac Foster: (813) 387-0273 / email@example.com
Julia Wischmeier: (813) 384-6726 / firstname.lastname@example.org