On May 25, 2023, Florida Governor Ron DeSantis signed HB 761 into law, which officially nullifies many of the plaintiff-friendly amendments to the Florida Telephone Solicitation Act (FTSA) passed by the Florida Legislature in 2021.
As detailed in prior articles, the 2021 amendments to the FTSA represented a knee-jerk reaction to the Supreme Court’s landmark decision in Facebook v. Daguid. Largely criticized by legal pundits, the 2021 FTSA included the broadest possible autodialer definition along with an aggressive private right of action that immediately set class action attorneys salivating. The all-too foreseeable result of the 2021 FTSA amendments was a dramatic spike in FTSA litigation, which choked Florida courts for the past year.
Impactful revisions to the FTSA that the governor signed into law
Narrower Autodialer Definition:
The revised statute includes a modified autodialer definition that only covers systems that both automatically select and dial numbers. This largely excludes most click-to-dial systems and other dialing platforms that require a certain level of human input, but many predictive dialer systems are still likely covered.
Only “Unsolicited” Calls Covered:
The prior version of the FTSA applied to all telephonic sales calls made with an autodialer absent express written consent, meaning that even calls to existing customers were covered. The newly amended statute only covers “unsolicited” calls, which excludes calls placed in reliance upon an established business relationship and those made in response to a consumer inquiry.
15 Day Notice Requirement:
Perhaps the most impactful change to the FTSA is its new notice requirement that obligates consumers to give 15 days advance notice before filing a lawsuit based on unsolicited text messages. Better still, such lawsuits can only be filed if a consumer submitted a “stop” request that was disregarded.
Retroactive Application for Existing Class Actions:
In a highly unusual twist, the FTSA amendments were written to apply retroactively to any class action filed on or after May 2nd, 2023, and any currently pending putative class action in which the class has not yet been certified. This means the amended FTSA applies to pending class litigation as if the amendments had always been present. While a welcome development for hapless FTSA class action defendants, modifying a statute in a manner that takes away existing claims will not be meekly accepted by the plaintiffs’ attorneys, who will doubtless fight this provision tooth and nail.
In the meantime, companies seeking to engage with Florida consumers can all breath a welcome sigh of relief.
Some 2021 FTSA Amendments Still Apply
Although the newly amended FTSA is far less friendly to plaintiffs and their attorneys, some significant aspects of the prior version of the law still apply and must be taken into account.
First and foremost, unsolicited live and prerecorded calls made using an autodialer are still covered by the statute, along with $500 statutory damages for violations. In addition, the anti-spoofing provision of the former FTSA remains intact, which plaintiff attorneys have taken advantage of to argue that the use of shortcodes constitutes a spoofing violation.
Finally, the FTSA’s timing and cadence limitations remain in effect, so calls are prohibited after 8 pm and no more than 3 call attempts can be made in a 24 hour period.
Key Takeaways
The newly amended FTSA has clawed back most of the more egregious aspects of the 2021 amendments to the law, which were largely responsible for the brutal spike in FTSA litigation filed in Florida courts over the past 18 months.
One thing is certain- SMS marketing in Florida is now a lot less risky, thanks to the notice requirement and the need to first disregard an opt-out request, but phone calls- both live and prerecorded- can still trigger FTSA claims without any advance notice or other requirements, and the old FTSA’s time and call count limitations are alive and well.
The Blacklist Alliance can be invaluable resource to those companies seeking to navigate complex legal landscapes such as the FTSA, to remain compliant, and to stay informed. These include comprehensive compliance training programs, ideal for onboarding new hires and ensuring that your entire team understands and adheres to the applicable laws and regulations.
Additionally, The Blacklist Alliance provides regular updates on the ever-evolving framework of statutes, rules, and regulations that apply to consumer engagement activities, thus helping to ensure that your company understands and adapts to changing legal conditions without being caught off-guard.
