On July 1, 2021, Florida’s Telephone Solicitation Act (“FTSA”) took effect. Enacting the FTSA was Florida’s attempt to address the rise in intrastate telemarketing. Whether intended or not, the FTSA ended up being more restrictive than the statute it was modeled after – the Telephone Consumer Protection Act (“TCPA”). As our readers know, The TCPA is a federal statute designed to restrict certain types of telemarketing communications.
In the years since the FTSA law’s enactment, numerous plaintiffs have filed claims under the statute. One of the primary reasons that FTSA lawsuits survive early defense motions is the statute’s lack of clarity on what constitutes an “automated system.” Even though the Supreme Court had already issued its opinion in Facebook v. Duguid, Florida’s legislature still did not clearly identify the components that would have a dialing system fall within the restrictions of the FTSA. As a result, lawsuits continue to pass initial muster under the FTSA law, whereas they would have generally been disposed of at an early stage under the TCPA. The tide may now be turning towards the FTSA defendant, however. While House Bill 761 (“HB 761”) and Senate Bill 1308 (“SB 1308”) are still pending, several proposed changes, including the tightening of the definition of an “automated system,” may soon raise the bar for FTSA plaintiffs.
Prohibition of the “Automated System” Under the FTSA Law?
The most important difference today between the FTSA and TCPA is their respective treatment of telephone dialing systems. The TCPA prohibits the use of an “autodialer” to send telemarketing communications without a consumer’s prior express written consent. Duguid clarified that “autodialers” are comprised of equipment which has the capacity either to store, or to produce, telephone numbers using random or sequential number generators. The FTSA does not use the term “autodialer.” Instead, it prohibits the use of an “automated system for the selection or dialing of telephone numbers” to place calls or send text messages to consumers without prior express written consent. Unfortunately, the text of the FTSA does not offer a definition for what constitutes an “automated system.”
The latest iterations of HB 761 and SB 1308 still do not add “automated system” to the FTSA’s definitions section. However, they do propose to update the FTSA law by changing the “automated system” provision from prohibiting the use of an:
“automated system for the selection or dialing of telephone numbers.”
“automated system for the selection and dialing of telephone numbers.”
While only one word is changed, this change is quite significant. Why? Because plaintiffs that file lawsuits under the current FTSA law take advantage of the expansive and unclear definition of “automated system.” Due to this fact, the House and Senate have agreed that the deluge of FTSA claims needs to be addressed. As such, if passed into law, the FTSA’s newly modified provisions would require plaintiffs to plead facts sufficient to create an inference that telemarketers employ a system that meets two violative criteria as opposed to one. The bar for FTSA plaintiffs will be raised significantly if the proposed FTSA language is adopted. The Senate Committee on Commerce and Tourism has commented that this change will bring the FTSA more in line with the TCPA.
Additional Proposed FTSA Law Changes
Under the existing FTSA, a consumer must express his/her consent to telemarketing communications through a written agreement that “bears the signature of the called party.” A signature includes “an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.” The proposed text of the FTSA Law adds additional forms of signature: “[a]n act that demonstrates express consent, including, but not limited to, checking a box indicating consent or responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail solicitation.” To be clear, telemarketers/sellers could soon have a choice between the alternative consent mechanisms; they do not have to provide all.
Finally, both HB 761 and SB 1308 propose to add a safe harbor provision. HB 761 states that before any FTSA action may be filed for unsolicited text message solicitations, the consumer must have texted “STOP” to the dialing number and, nonetheless, subsequently received text messages. Similarly, although SB 1308 does not specify the means, it also states that the called party must convey to the dialer that he/she no longer wishes to be contacted. Only further telemarketing communications made after a 30-day window following the “STOP” directive would be actionable.
Hire Experienced Telemarketing Attorneys to Comply with FTSA Law
Since its enactment, the FTSA’s expansive and ambiguous language has caused significant legal headaches for companies that call and/or text Florida State consumers. With bated breath, our team of telemarketing attorneys is keeping tabs on the language of these bills as they make their way through the legislative process. In the interim, businesses should remain proactive in ensuring compliance with the current form of the FTSA law. The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law and are well-equipped to keep your business updated on significant regulatory compliance developments.
If you require assistance with telemarketing law compliance or related litigation defense, please email us at email@example.com or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining 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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