Posted by Chris Alarie on Wed, 05/03/2023 - 12:57
The Florida legislature has passed major amendments to the state’s main piece of telemarketing regulations, the Florida Telephone Solicitation Act (FTSA). The amednments undo many of the effects of the 2021 FTSA amendments that had turned it into one of the most dangerous state-level telemarketing statutes in the nation.
The most notable change in these new amendments is how they define autodialers under the FTSA. The 2021 amendments had transformed the FTSA by adding autodialer penalties tracking the federal Telephone Consumer Protection Act (TCPA) but without any definition of what constitutes an autodialer. This allowed plenty of leeway for plaintiffs to argue that nearly any widely used dialing technology was an autodialer and courts generally obliged these claims. This created a circumstance in which the FTSA became arguably the most dangerous telemarketing regulation in the country, particularly for text message marketers. The new amendments correct this by specifying that, in order to be regulated as an autodialer, dialing technology must both automatically select and dial numbers. Previous language had applied to “automated system[s] for the selection or dialing of numbers.” The change from “or” to “and” does not exempt all forms of currently used technology, but it narrows the scope significantly. The FTSA autodialer restrictions may still be more broadly applicable than the TCPA’s (post-Facebook) but they are no longer as dangerous as they had been.
Other changes to the FTSA include a stipulation that the law’s regulated technology provisions will only apply to unsolicited calls. This allows calls relating to established business relationships (EBRs) and in response to consumer inquiries to be free from these prohibitions. The amendments also offer marketers more options for acquiring consent by broadening the definition of what constitutes a “signature” for purposes of the FTSA.
There is also a new requirement that plaintiffs who wish to sue for unwanted automated text messages must give a 15-day notice to the texter. This 15-day notice-and-cure period allows marketers the opportunity to cease sending these text messages without incurring massive penalties. Considering how much of post-2021 FTSA litigation centered on text messages, this could be a significant change.
The amendments still need to be signed into law by the governor, but it is generally expected that he will do so. The amendments will take effect immediately upon his signing the bill into law. These changes are also written in such a way that they apply retroactively to existing litigation. This could effectively wipe out a significant portion of pending FTSA litigation.
It is worth noting that these changes do not completely eliminate the risks for marketers under the FTSA. But they likely should significantly reduce the sort of text-message-based, ATDS complaints that have constituted the bulk of the FTSA litigation that has followed the 2021 amendments.
We will continue to follow this news and update this story once the governor signs the legislation. Additionally, we are hosting a webinar on the subject with Eric J. Troutman, Partner at Troutman Amin LLP, on Wednesday, May 10 at 10:00 AM Pacific Time. Registration for the free webinar can be found here.