“Indefinitely Postponed and Withdrawn From Consideration”: Florida Telephone Solicitation Act Amendments Wait for Another Day

By Daniel S. Blynn & Liz Clark Rinehart 

We’ve previously detailed the problem with the Florida Telephone Solicitation Act (FTSA), which, on its face, expansively prohibits the use of “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without the recipient’s prior express written consent. Fla. Stat. § 501.059(8)(a) (emphasis added).

Thus, arguably, even if a live human manually presses each digit in a ten-digit telephone number to place a telemarketing call or to send a marketing text message, if a system automatically selected those numbers for the representative to dial, it might be considered “autodialing” under the FTSA. (We have our doubts but, then again, no one refers to us as “Judges Blynn and Rinehart” . . . yet(?).) By comparison, the federal Telephone Consumer Protection Act’s (TCPA) definition is more restrictive and industry-favorable, requiring that telephone numbers be randomly or sequentially generated and called without human involvement. Dialing from a stored list of telephone numbers is not autodialing under the TCPA, as long as those numbers themselves are not pulled out of thin air.

In the wake of a deluge of FTSA class action filings following the July 1, 2021 FTSA amendments, which established a private right of action, both the Florida House and Senate saw bills introduced to tweak the FTSA’s autodialer provision, along with other fixes. But on March 12, both House Bill 1095 and Senate Bill 1564 were put on hold. The state legislature ended its regular session that day without acting on either bill. Instead, the bills are “[i]ndefinitely postponed and withdrawn from consideration,” at least until the next session. That leaves the FTSA as it was amended last July.

For now, interested parties can only wait and see how the courts will handle FTSA lawsuits, which may already number more than 100. There are pending motions to dismiss making arguments that the FTSA’s autodialer prohibition should be construed as consistent with the TCPA’s autodialer definition and/or that the FTSA’s prohibition is ambiguous. The latter argument is especially apt, given that the FTSA does not provide a definition for “automated system” and uses a wide variety of phrases to describe the prohibited technology throughout the statute.

The first FTSA decision was entered last week in Alvarez v. Sunshine Life & Health Advisors LLC, but it is of no help on the autodialer issue, as the court denied a motion to dismiss based solely on a standing analysis. So, FTSA uncertainty and ambiguity remain the status quo. We’ll continue blogging about notable FTSA developments and decisions, so check back often.