As our readership knows, the Florida State legislature passed House Bill 761 (“HB 761”) on May 4, 2023. On May 25, 2023, Governor DeSantis signed the bill into law, clearing the path for major amendments to the Florida Telephone Solicitation Act (“FTSA”) to take effect. The FTSA is Florida State’s equivalent to the Telephone Consumer Protection Act (“TCPA”). The TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. Although modeled after the TCPA, the FTSA has been much more restrictive for telemarketers. This led to a disproportionate number of claims filed under Florida’s Mini-TCPA, in comparison to other state equivalents. HB 761 contains major FTSA amendments designed to shift the balance back to a more favorable playing field for the telemarketing industry. Please note that the FTSA amendments take effect immediately and apply retroactively to all FTSA matters in which a class has not yet been certified.
How are HB 761’s FTSA Amendments Favorable to the Telemarketing Industry?
The FTSA, in its pre-amended form, was extremely plaintiff friendly. The three primary reasons for this were that the FTSA:
- Expanded the scope of equipment regulated under the FTSA to include “an automated system for the selection ordialing of telephone numbers,” while leaving the term “automated system” undefined;
- Expressly provided for the FTSA to apply to bothphone calls and text messages; and
- Removed a prior exemption for calls placed to individuals with whom the dialer had an established business relationship.
Because of these provisions, among others, class action complaints against telemarketing companies operating in Florida have proliferated in recent years. This has made it extremely difficult for telemarketers to conduct business in Florida. The tide has now shifted with the recent FTSA amendments, which:
- Revise the scope of equipment regulated under the FTSA to include an “automated system for the selection and dialing of telephone numbers.” “Automated system” remains undefined; however, the revised scope of regulated equipment is now in line with the Supreme Court’s decision in Facebook v. Diguid;
- Allow consumers to provide prior express written consent by checking a box on a website form;
- Add a safe harbor provision, requiring that before consumers can bring claims for text messages sent in violation of FTSA, consumers must first respond ‘STOP’ to the numbers from which the called parties received telemarketing text messages. Callers must comply with STOP requests within 15 days. Only if telemarketers fail to comply with STOP requests within this time frame, can consumers proceed with filing FTSA lawsuits.
The FTSA amendments are a major development for telemarketers conducting business in Florida. The amendments make additional changes to the FTSA, but just these three will have a seismic effect on Florida’s telemarketing industry. These amendments will force industrious telemarketing law plaintiffs to significantly scale back their operations in Florida. Note that plaintiff’s attorneys that were previously focused on assisting Florida consumers with FTSA claims are already transitioning to Oklahoma. Oklahoma’s OTSA is another Mini-TCPA law that regulates the use of “an automated system for the selection or dialing of telephone numbers.”
Hire Experienced Telemarketing Attorneys to Comply with Florida’s Laws
Now that Governor DeSantis has signed HB 761 into law, its amendments to the FTSA take immediate effect. As mentioned earlier, the FTSA’s revised provisions apply retroactively to all matters where a class has not yet been certified.
The attorneys at Klein Moynihan Turco have decades of experience in defending companies against telemarketing claims and are well-equipped to assist your business with compliance matters. Remember – just because the FTSA’s new amendments significantly lessen its bite, this does not mean that your business does not have to comply with its newly-modified provisions.
If you are interested in working with a law firm that has an extensive track record in the telemarketing field, please email us at info@kleinmoynihan.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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