By: Jeffrey A. Backman, Esq. and Roy Taub, Esq.
The current special session of the Florida Legislature included in its packed agenda H.B. 761, a bill that significantly amends the Florida Telephone Solicitation Act, (“FTSA”).[1] To understand the importance of these amendments, the history of the FTSA in the last two years must be discussed. The FTSA has been on the books in various forms for decades, and in some regards, was analogous to the federal Telephone Consumer Protection Act, (“TCPA”).[2] For example, the FTSA has long prohibited making or knowingly allowing a telephone solicitation call to be made with “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called . . . .”.[3] Unlike the TCPA, however, the FTSA was very rarely the subject of any litigation because there was no private right of action for a violation of the FTSA. That changed in 2021.
On April 1, 2021, the United States Supreme Court unanimously interpreted the TCPA’s express definition of an “automatic telephone dialing system,” or “ATDS,”[4] to require that, “whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.” Facebook, Inc. v. Duguid .[5] This had the effect of placing most equipment used to place telemarketing calls, which generally rely on lists of selected telephone numbers – as opposed to calling telephone numbers randomly or in sequence, (e.g., 555-1111, 555-1112, 555-1113) – outside the scope of the TCPA’s ATDS prohibition.
For the Plaintiffs’ bar, though, when the Supreme Court shut one door, the Florida Legislature opened another. In June 2021, Florida amended the FSTA to include a private right of action and the ability to recover the greater of actual damages or statutory damages of $500, which can be trebled if the court finds the violation of the FTSA was willful or knowing. It did not take long after these amendments were effective, on July 1, 2021, for a flood of putative class action filings in the courts (and pre-suit settlement demands) to materialize.
In response, the Florida Legislature acted in the special session to amend the FTSA, and Governor DeSantis signed the bill yesterday. Some of the major changes in the new law, which went into effect upon the Governor’s signature, are as follows:
The definition of “prior express written consent” is revised to modify the disclosures that must be clearly and conspicuously presented. Moreover, a consumer’s “signature” for purposes of giving prior express written consent to receive telephone solicitation calls now includes an “act that demonstrates express consent,” which may include checking a check box indicating consent or otherwise “responding affirmatively.”
The scope of the FTSA’s prohibition has been narrowed. The FTSA now prohibits unsolicited telephone calls only “if such call involves an automated system for the selection and and dialing of telephone numbers be automated. Previously, this prohibition had been stated in the disjunctive (“or”).
Before an action for damages for text message solicitations can be filed, the called party must reply “STOP” to the sender of the text message. Within fifteen days after receipt of such a request to stop sending messages, the sender must cease sending any further text messages (other than to confirm receipt of the request to stop sending messages). The new law creates a safe harbor where an action can be brought only if the called party continues to receive unconsented text messages fifteen days after the “STOP” request.
These and the other amendments to the FTSA “apply to any suit filed on or after the effective date of this act,” but they apply retroactively to putative class actions that are “not certified on or before the effective date of this act.” In this way, the Legislature addressed its major concern that led it to make these changes – that businesses were facing the prospect of annihilative statutory damages in putative class actions over what seemed like relatively minor transgressions.
The amendments need to be taken into account by any business or organization that sends text messages or engages in anything that could arguably be considered to be telemarketing, even if only business-to-business communications are involved. It is essential for businesses to review their procedures to ensure compliance with the new law. Compliance, though, is never going to prevent demands and lawsuits brought by plaintiffs’ attorneys. The changes to the FTSA may result in fewer class actions being filed, but that will not happen immediately. The new law is likely to lead to disputes and challenges in lawsuits about the meaning and application of these changes, particularly in already-filed lawsuits about the retroactive effect of the law. Skilled defense counsel with experience and expertise in the field is therefore also necessary.
If you have any questions about compliance issues or how these changes may otherwise affect you, you should consult an attorney that has experience and expertise in this field and in class action defense. Greenspoon Marder LLP provides compliance advice, and its class action defense group has successfully defended against hundreds of class actions, including TCPA and FTSA lawsuits. Consumer class action lawsuits can impose a significant strain on even the biggest companies, and defending against them is no small feat. Experienced, strategic counsel is a necessity.
[1] Fla. Stat. § 501.059 [2] 47 U.S.C. § 227 [3] Fla. Stat. § 501.059(8)(a) [4] 47 U.S.C. § 227(a)(1) [5] U.S., 209 L. Ed. 2d 272, 141 S. Ct. 1163, 1170 (2021)
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