On July 1, 2021, Florida’s version of the Telephone Consumer Protection Act (“TCPA”), the Florida Telephone Solicitation Act (“FTSA” or the “Act”), went into effect. Sometimes dubbed the Florida “Mini-TCPA,” the Act implements important changes to Florida’s telemarketing laws that mark out vital distinctions from its federal TCPA counterpart. While FTSA litigation under the revised law is brand new, the FTSA has already produced several lawsuits in the two months that it has been active. If you have been sued for violating the FTSA or do any telemarketing business whatsoever in Florida, this guide is for you.
What do you need to know about FTSA litigation?
In thinking about FTSA litigation, you should begin with the law itself. Both the TCPA and FTSA allow for consumer private rights of action, and both carry the same damages amounts. The FTSA has two main differences from the TCPA: autodialer use and call frequency restrictions.
Autodialer. The FTSA does not define “autodialer.” The Act prohibits using “automated systems for dialing or selection of phone numbers or the playing of recorded messages” to place calls or send text messages to consumers without prior express written consent. Recent case law has clarified the TCPA definition of “autodialer” as equipment that uses a random or sequential number generator to produce the called party’s phone number. But how does that square with an “automated system for dialing or selection of phone numbers”? This question is one of the most important in determining the strength of a telemarketer’s defense in an FTSA litigation proceeding.
On the one hand, the omission of a precise autodialer definition in the FTSA might be useful. It allows telemarketer defendants to argue that the TCPA’s definition and the decisions interpreting it should guide Florida courts’ efforts to analyze an FTSA autodialer claims. On the other hand, the lack of a clear definition gives plaintiffs an opening to argue that any automated system that dials numbers or selects the order in which to dial numbers is an autodialer. With no judicial interpretations on the books yet, telemarketers are best suited to use the TCPA’s definition of autodialer to fill in the gap that the FTSA leaves by failing to define the technology it prohibits telemarketers from using.
Call Frequency. The FTSA limits the frequency of calls and text messages on any given day. No one may place more than three commercial calls or send more than three commercial text messages on a single subject in the same 24-hour period to a Florida state consumer, regardless of the phone number used by the telemarketer. For this part of the Act, commercial telephone solicitations (including calls and text messages) are defined as unsolicited calls used to induce the called party to purchase or invest in goods or services.
As such, the best litigation defense to violations of the call frequency provision may be to demonstrate that you have the prior express written consent to call or text the subject consumer(s). Keeping detailed and up-to-date records of consent is crucial for every telemarketer that wants to avoid TCPA and FTSA litigation. Recordkeeping becomes even more important when it comes to the FTSA given that a telemarketer must keep track of how many calls it places to a particular Florida consumer in a 24-hour period and on what subjects those calls concerned. Litigation defense starts before anyone files a lawsuit; that rule is never more important to follow than in this FTSA litigation environment.
Why FTSA litigation matters to your business.
With new consumer protection statutes comes a bevy of new litigation proceedings. Telemarketers already have several statutory and regulatory hoops to jump through in order to stay TCPA compliant. The FTSA now adds another layer of complexity in order to stay compliant in one of the largest states in the Union. Plaintiffs and their attorneys in Florida will test the limits of this new statute by continuing to make demands and file lawsuits. Accordingly, telemarketers need to be ready with solid defenses and records proving, among other things, prior express written consent and proper call frequency limitation procedures.
Hire experienced telemarketing attorneys.
Keeping up to date with the TCPA and FTSA is time consuming, expensive, and exhausting. Telemarketers have enough to worry about without adding an FTSA headache to the mix. The solution? Hire experienced telemarketing attorneys who can relieve those headaches for you. The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law. The FTSA may be new, but our attorneys already have plans of action to help your business avoid FTSA litigation with best-in-the-industry telemarketing policies and first-rate litigation defense.
If you need assistance with updating your telemarketing practices and procedures or defending against a TCPA 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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