On May 25, 2023, Gov. Ron DeSantis signed into law amendments to the Florida Telephone Solicitation Act, Fla. Stat. § 501.059, a state-law analog to the federal Telephone Consumer Protection Act (TCPA).
Florida’s “Mini-TCPA” — also called the FTSA — prohibits making telemarketing calls or sending text messages using an automated system without the prior express written consent of the called party. The FTSA was enacted in June 2021 in response to case law drastically narrowing the scope of the autodialer provisions of the TCPA. Since enacted, Florida courts and companies placing marketing calls and text messages to Florida residents have been inundated with class-action litigation asserting FTSA violations. With the new business-friendly FTSA amendments, the flood of FTSA litigation is likely to taper off dramatically.
Here are five key amendments to the Florida statute.
- The definition of autodialer is substantially narrowed. Previously, the FTSA prohibited making calls or sending text messages using “an automated system for the selection or dialing of telephone numbers.” This language arguably meant the FTSA reached systems that did not automatically dial, as long as the system used an automated process to select numbers to be called. With the amendment, “or” is changed to “and,” clarifying that systems must automatically both select and dial numbers to fall within the scope of the FTSA. Although the amendment means fewer automated systems will be subject to the FTSA, it remains to be seen whether the FTSA’s new autodialer definition will be interpreted as coextensive with the TCPA’s narrow autodialer definition, or whether the FTSA will continue to reach a broader range of equipment.
- Checked boxes and affirmative responses are signatures, too. Under the FTSA, “prior express written consent” must “bear the signature of the called party,” which has prompted litigation regarding what constitutes a signature in the digital age. Now, the statute clarifies that a consumer can give consent by checking a box indicating consent or responding affirmatively to a text message, two methods of consent plaintiffs previously challenged despite their commonplace use.
- Only “unsolicited” calls are prohibited. The FTSA previously required prior express written consent to place any telemarketing calls or text messages using an automated system. With the new amendment, only “unsolicited” calls require prior express written consent. The FTSA carves out several categories of calls from the definition of “unsolicited,” including calls made in response to an express request of the person called or to a person with whom the business has a prior or existing business relationship.
- Plaintiffs must text “STOP” before bringing a lawsuit, and businesses have 15 days to comply. The amendments limit the circumstances in which plaintiffs can bring FTSA claims based on unwanted text messages. Before bringing an action for damages, the called party must reply “STOP,” and businesses have 15 days to stop sending text messages. A plaintiff may bring an FTSA action based on text messages only if the messages do not stop within 15 days after a “STOP” request. This change should drastically curb FTSA litigation based on text messages.
- Retroactive application is for class actions only. Fortunately for businesses currently targeted by putative class action lawsuits, the amended version of the FTSA will apply to any pending putative class action so long as the class has not been certified at the time the law takes effect. The same is not true for individual claims — the amendment will not apply retroactively to individual claims and applies only to individual claims filed after the law becomes effective.
McGuireWoods’ team of experienced FTSA, TCPA and class action litigators are monitoring developments with the TCPA and its Florida analog. The team can assist your business with developing compliance programs and handling any related litigation.