Last month, Florida governor Ron DeSantis signed into law amendments to the Florida Telephone Solicitation Act (FTSA) that scale back the scope and reach of the statute, bringing it in line with federal TCPA standards and providing needed comfort to good faith marketing companies operating in Florida.
Since the last statutory changes in July 2021, the FTSA has severely impacted telemarketing and text marketing businesses marketing to Florida residents and otherwise conducting business in the state. Like the federal Telephone Consumer Protection Act (TCPA), the FTSA prohibits using automated dialers to call or text consumers without their consent.
The Florida law also enables consumers to recover $500 per call and provides for up to $1,500 in treble damages for willful or knowing violations, plus reasonable attorney’s fees and costs. To date, the FTSA has also had much more lenient standards for bringing a claim, resulting in Florida being a hotbed of state-level litigation in the area.
The amendments will change all of that. They are also retroactive, applying to actions started on or after May 25th, but also to any pending putative class actions in which the class has not yet been certified.
The amendments most significantly narrow the scope of what is considered an “automated dialer” to only dialing systems that both select and dial or play recorded messages. This redefinition brings the FTSA in line with the TCPA autodialer standard.
While the FTSA currently prohibits using automated systems for all sales calls, including both solicited and unsolicited, the amendments clarify that the prohibition applies only to unsolicited telephone sales calls. The FTSA now does not apply to calls made 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.
The amendments also expand the signature requirement for prior express written consent to include affirmatively responding to receiving a text message or an e-mail solicitation or otherwise checking a box indicating consent.
Finally, the amendments include a safe harbor provision for texts, requiring that individuals seeking statutory damages on the basis of text messages to first respond to a text message affirmatively asking for future messages to stop, and then allowing the sender 15 days to actually stop sending text messages. A consumer can then bring an FTSA claim only if the sender continues to send text messages after the 15-day safe harbor.
These new amendments remediate the FTSA’s most pernicious effects on good faith marketing campaigns and, hopefully, will limit the scope of future FTSA litigation to the most egregious cases of abuse.