Telephone Consumer Protection Act

In July, 2021, the Florida Telephone Solicitation Act, F.S.A. § 501.059 (“FTSA”), was amended to create a private right of action for those receiving marketing calls and text messages, giving rise to an onslaught of individual and class action litigation in state and federal courts across the country. On May 25, 2023, Florida Governor Ron DeSantis signed legislation amending the FTSA, significantly impacting future claims brought under the Act, as well as pending, uncertified putative class actions. In pertinent part, the amendment provides:

1. Automated System: An “automated system” is now defined as technology used for the “selection and dialing” of telephone numbers. The earlier version of the FTSA defined an “automated system” as technology used for the “selection or dialing” of numbers. Substitution of the word “and” for “or” provides greater clarity regarding the technology subject to the FTSA, and limits arguable application of the Act.
2. Prior Express Written Consent: The amendment now allows the signature requirement to be satisfied through “an act of express consent, including, but not limited to, checking a box indicating consent or responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail solicitation.” It also requires that the consent include the telephone number to which the “called party” authorizes calls to be made, whereas the prior version of the FTSA required the number of the signatory.
3. Calls Requiring Prior Express Written Consent: In perhaps the most important and reasonable amendment to the FTSA, the Act now requires that prior express written consent be provided for “unsolicited telephonic sales calls.” The prior version of the Act applied simply to “telephonic sales calls.” The FTSA defines an “unsolicited telephonic sales call” as a telephonic sales call other than a call made:

   (1) In response to an express request of the person called;

   (2) Primarily in connection with an existing debt or contract, if payment or performance of such debt or contract has not been completed at the time of such call;

   (3) To a person with whom the telephone solicitor has a prior or existing business relationship;

   or

   (4) By a newspaper publisher or his or her agent or employee in connection with his or her business.

   This is inherently reasonable. Far too often, lawsuits were filed where Plaintiffs expressly requested telephonic sales calls but claimed the consent provided, often satisfying the requirements of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), did not meet the technical requirements of prior express written consent under the FTSA.
4. Safe Harbor for Text Messages: The FTSA now also requires that if the telephonic sales call is a text message, those wishing to not receive such messages must reply “STOP” to the number from which the text was received. The telephone solicitor then has 15 days after receiving notice to stop sending text message solicitations and may not send texts thereafter except to confirm receipt of the notice. The safe harbor provision further provides that “[t]he called party may bring an action under this section only if the called party does not consent to receive text messages from the telephone solicitor and the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice to the telephone solicitor to cease such text messages.”
5. Effective Date:  The amendment applies to any individual action filed after the effective date of the amendment and any putative class action not certified before the effective date of the Act.

A copy of the amending language to the FTSA can be see by clicking here.