About a year ago, the Florida Telephone Solicitation Act (“FTSA”) went into effect. The law imposed additional restrictions on telemarketing beyond those contained in the Telephone Consumer Protection Act (“TCPA”) and created a state-based avenue for telemarketing litigation. Over the last year, FTSA lawsuits have changed the telemarketing landscape in Florida. The FTSA even inspired an almost identical law passed in Oklahoma recently, dubbed the “Oklahoma mini-TCPA.” All in all, the FTSA is here to stay, so businesses must stay vigilant.
How have FTSA lawsuits impacted the state of telemarketing litigation?
Within weeks of the FTSA’s going into effect, plaintiffs began filing lawsuits. Mostly concentrated in South Florida, these new telemarketing lawsuits not only involved a brand new statute with no judicial interpretations, but also gave plaintiffs the strategic benefit of litigating in state court. Federal courts across the country have a universal set of procedural and evidentiary rules, making the court’s location less impactful on the outcome of the litigation proceeding. State courts, however, have widely varying rules and, sometimes, a looser approach to managing litigation.
Before the FTSA existed, plaintiffs mostly sued under the TCPA for alleged telemarketing violations, and those cases almost always ended up in federal court. That abundance of cases made it simpler to find judges across the country interpreting the same statute, thus providing vital context for asserting defenses. But the FTSA changed that calculus. The new Florida law took cases out of federal court and let plaintiffs advance broad interpretations of FTSA restrictions in the absence of any contradictory caselaw.
The FTSA also contains some key differences from the TCPA. The most notable of which, at least in a litigation context, is the definition of “autodialer.” Readers will know that under the TCPA, an autodialer is equipment that randomly or sequentially generates phone numbers and then dials those numbers. Yet the FTSA contains no such definition, just a somewhat vague reference to an “automated system for the selection or dialing of telephone numbers.” Until an appellate court has occasion to interpret the FTSA’s autodialer provision or the Florida Legislature provides a real definition, taking a broader view of what constitutes an “autodialer” is the safest course of action for telemarketers.
Today, a rapidly growing percentage of telemarketing litigation in Florida (one of the country’s biggest markets) involves the FTSA. That shift means that companies often need to hire litigation counsel and then also hire local counsel in Florida to defend against FTSA claims, adding greater expense to an already expensive endeavor. Note that the Florida Legislature may amend the law to clarify several provisions, but, at least until next year’s legislative session, companies are stuck with this ambiguous version.
Defending against FTSA lawsuits? Hire experienced telemarketing attorneys.
Telemarketing litigation requires attention to detail and intimate knowledge of various statutes. These skills are essential to achieving positive results. But only those dedicated to the sector can perform on a high level. The solution? Hire experienced telemarketing attorneys to maintain industry-best compliance practices and provide business-oriented expertise in litigation when needed.
The attorneys at Klein Moynihan Turco have years of experience in all things telemarketing law. We can help your business stay FTSA compliant and defend you in the event of FTSA litigation.
If you need assistance with updating your telemarketing polices and procedures or with defending against an FTSA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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