The telemarketing world tilted on its axis last year when Florida enacted the Florida Telephone Solicitation Act (“FTSA”). The FTSA is Florida’s answer to the Telephone Consumer Protection Act (“TCPA”). No law is perfect, and the FTSA has created myriad headaches for its lack of clarity. In a nod to the industry’s concerns, the Florida Legislature is now considering a FTSA amendment bill in an attempt to clear up the confusion. The bill would provide more certainty, but, like any legislation, it does not solve every problem. Note that the FTSA amendment bill is moving through the Florida Legislature at a steady pace.
How would the FTSA amendment bill change Florida’s telemarketing law?
The FTSA amendment bill would make a few major changes to Florida’s telemarketing law. It would change important statutory definitions, the requirements for obtaining prior express written consent, and the ability to recover attorney fees for prevailing parties. Any bill (including this one), however, can change during committee meetings or with amendments before the final vote on the measure.
Automated system. Perhaps the most important change that the bill would bring is its definition of automated system (sometimes called an autodialer). An “automated system” means technology that creates a telephone number, stores or selects it from a list or database, and then dials the number. This altered definition appears to be in line with the TCPA definition of autodialer. The key element of the proposed FTSA definition is at the beginning: the machine must create the phone number. This development could be crucial because the FTSA presently does not directly define the term, leaving only inferences that suggest a broader definition.
Inquiry calls. Many telemarketers place calls or send text messages in response to an inquiry or request from consumers. For example, where a consumer fills out a form requesting more information on health insurance options, the telemarketer may place a call to connect that consumer with health insurance agents. The FTSA amendment bill would allow the telemarketer to place a call in response to such an inquiry within 120 days of the subject request. Please note: Telemarketers would only be permitted three calls in response to any given inquiry.
Consent changes. Consent is the cornerstone of telemarketing compliance. Another big, proposed change comes in the draft consent requirements. The bill provides a “presumptively valid” consent statement, which would appear to be good for the industry. However, the bill also would require the consent statement be in 12-point bold font and within two inches of the call-to-action button or other signature mechanism. The requirement is apparently geared toward computer-based webpages, as such a font requirement would never fit on a typical cellular phone screen.
Attorney fees. The final important change contained in the proposed bill is to make clear that the prevailing party in any FTSA lawsuit has a right to recover its attorney fees. This is notably in contrast with the lack of such a fee provision in the TCPA. This means that, for future FTSA cases, even the defendant would be able recover its attorney fees from a plaintiff!
Retroactivity. The bill would make all these changes, except for the attorney fees provision, retroactive to July 1, 2021. As such, its passage could throw a giant bucket of uncertainty into pending FTSA litigation.
Why does the FTSA amendment bill matter to your business?
The changes proposed in the FTSA bill could have a serious impact on telemarketers that do business in Florida. Anyone in the midst of FTSA litigation could have the entire case turn on the definition of automated system and/or the consent language font and placement requirements. Only time will tell which changes remain in the bill and whether the bill gets enacted at all.
Telemarketers need to be ready for potential telemarketing compliance changes like those proposed in the FTSA amendment bill. Of course, hiring experienced telemarketing attorneys on the leading edge of industry-best practices is the key to staying compliant with state and federal laws. Remember: The attorneys at Klein Moynihan Turco have years of experience in all things telemarketing law.
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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