Last week, Florida witnessed a significant development in its telephone solicitation regulations with the signing of HB 761 into law. This amendment brings about substantial changes to the Florida Telephone Solicitation Act (FTSA).
Implemented approximately two years ago, the FTSA introduced a private right of action, which resulted in a surge of lawsuits, often in the form of putative class actions, targeting telephonic sales calls and text messages. The FTSA imposed stricter rules for obtaining consent to receive such calls or texts compared to its federal counterpart, the Telephone Consumer Protection Act (TCPA), and imposed hefty penalties for violations. This created a scenario where businesses, both within and outside of Florida, that contacted a Florida resident without “prior express written consent” faced significant risks. Even cases with questionable merit had the potential to coerce businesses into settling due to the intimidating nature of class action allegations resulting from a simple text message.
However, the party is now over for plaintiffs’ lawyers aiming to transform a few text messages into large-scale class actions. HB 761 significantly scales back the FTSA, making it much easier for businesses to protect themselves against liabilities stemming from sales calls and text messages. Let’s delve into the most critical changes brought about by this amendment.
Introducing a Safe-Harbor Period
Arguably the most potent tool for defendants facing FTSA lawsuits will be the new safe-harbor provision established by HB 761.
According to this provision, before an action for damages can be initiated based on text message solicitations, the recipient must respond with “STOP” to notify the sender of their desire to discontinue receiving text messages from that specific sender. Upon receiving the “STOP” notification, the sender has a 15-day grace period to cease sending text messages to that phone number. Only if the sender continues to send text messages after the expiration of the safe-harbor period can the recipient pursue legal action for damages.
This provision is likely to bring an end to FTSA lawsuits based on text messages, except for the most severe cases where a business completely disregards a “STOP” notification. To avoid FTSA liability for sending text messages, businesses need only comply with the recipient’s request to “STOP” within a 15-day timeframe. If a plaintiff fails to send the “STOP” notice and initiate the safe-harbor period, the defendant should have a straightforward path to dismiss the lawsuit.
Limiting the Scope of Applicable “Automated Systems” and Calls
Under the federal TCPA, telemarketers are prohibited from using an “automatic telephone dialing system” (ATDS) to initiate a call or send a text message without the recipient’s prior express consent. To qualify as an autodialer under the TCPA, a device must have the capability to store a telephone number using a random or sequential number generator, or produce a telephone number using a random or sequential number generator.
The FTSA initially had broader criteria, prohibiting telephonic sales calls (or texts) made using “an automated system for the selection or dialing of telephone numbers.” Courts rejected arguments that the term “automated system” should be interpreted to apply only to the same types of devices that meet the definition of autodialers under the TCPA. The previous wording allowed either the “selection” or the “dialing” of telephone numbers to be automated.
But now, HB 761 alters the “or” in the statute to an “and.” As a result, the FTSA will apply only when a call or text is made using an automated system for both the “selection and dialing of telephone numbers.” This seemingly minor change will significantly reduce the number of devices subject to the FTSA.
Additionally, HB 761 modifies another crucial phrase within the same section of the statute. Previously, the FTSA prohibited any telephonic sales call made using an automated system without prior express written consent. However, HB 761 replaces the reference to “a telephonic sales call” with “an unsolicited telephonic sales call.” Considering the statute’s definition of “unsolicited telephonic sales call,” this prohibition will no longer apply to certain types of calls, particularly those made “to a person with whom the telephone solicitor has a prior or existing business relationship.” As a result, businesses can now generally call or text their existing customers without fear of violating the FTSA. Nonetheless, it remains crucial to be aware of other prohibitions, such as contacting individuals on the National Do Not Call Registry.
Expanding Acts of Consent
In the previous version of the FTSA, “prior express written consent” was narrowly defined as requiring a written agreement with the “signature” of the called party. The definition of “signature” included only “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.” However, the definition of “signature” has now been expanded to encompass a broader range of acts that demonstrate express consent. This expansion explicitly includes acts such as checking a box indicating consent or responding affirmatively to receiving text messages. Consequently, a simple affirmative response to a text message is likely to suffice, making it easier for defendants to demonstrate “prior express written consent.”
Retroactive Application
The majority of defendants currently facing FTSA lawsuits will be able to take advantage of these new amendments. HB 761 specifies that its amendments “apply to any suit filed on or after the effective date of this act and to any putative class action not certified on or before the effective date of this act.” As long as a class action has not yet been certified, defendants can immediately invoke these amendments to establish strong defenses against FTSA claims. For example, in almost any ongoing FTSA case based on text messages, defendants should be able to swiftly seek dismissal or summary judgment by highlighting the absence of a “STOP” notice and the completion of the 15-day safe-harbor period.
Conclusion
While continuing to protect Florida residents from more severe telemarketing tactics, the new amendments introduced by HB 761 make it easier for businesses to comply with the FTSA. These changes are likely to bring an end to the flood of “gotcha” class action complaints stemming from inadvertent FTSA violations. Defendants currently facing FTSA actions should carefully review these amendments to identify potential new defenses applicable to their cases.
As always, feel free to reach out if you need any further assistance.
Jeremy L. Kahn is a thoughtful and strategic litigator, with a creative approach. He enjoys crafting strategies to resolve difficult and legally challenging problems, always seeking to achieve his clients’ desired results in an efficient manner.
