May 31, 2022

Florida’s Telephone Solicitation Act Survives First Constitutional Challenge

Since becoming law in July 2021, Florida’s Telephone Solicitation Act (FTSA), Fla. Stat. § 501.059(8)(a), has been a favorite of plaintiffs’ lawyers seeking to take advantage of its ambiguous restrictions on certain sales calls and text messages to Florida residents, and its substantial and disproportionate penalties of up to $1,500 per violative call or text. Over the last 11 months, plaintiffs have filed dozens of FTSA class actions challenging calls and texts made by a wide-range of companies based inside and outside of Florida. The prevalence of these FTSA lawsuits reflects that the statute effectively seeks to unwind the U.S. Supreme Court’s April 2021 ruling in Facebook, Inc. v. Duguid. There, the Supreme Court held that the Telephone Consumer Protection Act’s (TCPA) definition of an automatic telephone dialing system (ATDS) required the use of a random or sequential number generator to store or produce numbers to text or call, rejecting the Ninth Circuit’s and other courts’ expansive reading that any system that stored and dialed phone numbers from a list was an ATDS. Florida, in turn, amended its mini-TCPA statute (the FTSA) just a few months later, implicitly rejecting the Duguid decision. As the authors here previewed when the FTSA was first passed, the amended statute is not limited to texts or calls made using an ATDS. It instead applies to certain sales calls or texts made using an “automated system” — a term nowhere defined in the FTSA — for the “selection or dialing” of the number.

In response to the slew of FTSA lawsuits, companies have asserted multiple constitutional challenges to the FTSA, including arguments that it is preempted by the TCPA, violates the Dormant Commerce Clause because it improperly regulates interstate commerce, violates the First Amendment, and is unconstitutionally vague. Last week, in the first decision evaluating those claims, a federal court in Florida rejected all constitutional challenges and declined to dismiss a class action where the plaintiff claimed he received allegedly automated text message advertisements without his prior express written consent. Turizo v. Subway Franchisee Advertising Fund Trust Ltd., Case No. 21-61493 (S.D. Fla. May 18, 2022).

While this is not the end of constitutional challenges to the FTSA, the decision serves as an important reminder that companies making sales calls and texts to Florida residents must consider and ensure compliance with the FTSA’s specific restrictions on texting and calling consumers in Florida, separate and distinct from compliance efforts with the federal TCPA’s restrictions.

The Florida Telephone Solicitation Act Recap

Among other things, the FTSA prohibits sales calls and texts placed using an “automated system” without first obtaining prior express written consent of the called party. Fla. Stat. § 501.059 (8)(a). The FTSA also contains a rebuttable presumption that a sales call or text made to any number with a Florida area code is made to a Florida resident or to a person in Florida at the time of the call. Fla. Stat. § 501.059(8)(d). 

The FTSA contains a private right of action and imposes a penalty of $500 per violation of the statute’s “automated system” provision. That penalty can be tripled to $1,500 for willful or knowing violations of that provision. Fla. Stat. § 501.059(10).

Turizo v. Subway Franchisee Advertising Fund Trust Ltd

In Turizo v. Subway, Case No. No. 21-61493 (S.D. Fla. May 18, 2022), the plaintiff claimed he received unsolicited advertisements for Subway, including discount codes and invites to order Subway online, through “automated” text messages without his prior consent. He alleged these text messages violated the FTSA and sought statutory penalties. 

In moving to dismiss the complaint, the defendant argued that the FTSA should be interpreted coextensively with the TCPA and limited to text messages made with an ATDS (i.e., technology that uses a random or sequential number generator). Defendant also argued the FTSA (1) was preempted by federal law, (2) violated the Commerce Clause of the U.S. Constitution, (3) violated the First Amendment, and (4) was unconstitutionally vague. The court denied the motion to dismiss. 

First, the court declined to interpret the FTSA’s “automated system” to mean the same thing as the TCPA’s ATDS definition, noting that the Florida legislature nowhere defined the term to mean only systems that use a random or sequential number generator. 

Second, the court rejected each constitutional challenge. With respect to preemption, the court found the TCPA was not meant to occupy the field of autodialer regulation and that the FTSA was within the scope of the TCPA’s savings clause. The court further held that even if the FTSA is more restrictive or prohibitive than the TCPA, that does not mandate preemption. 

The court also rejected the defendant’s Dormant Commerce Clause argument, which asserted the FTSA unconstitutionally regulated extraterritorial conduct outside the state of Florida and otherwise unduly burdened interstate commerce. The court instead interpreted the FTSA to apply only to Florida residents or persons within the state, and found Florida’s public interest in protecting Floridians from robocalls outweighed the “minimal” burden placed on interstate commerce by the statute — that “Defendant might have to incur more costs or less efficient telemarketing practices . . . does not render the FTSA unconstitutional.” 

The court also declined the defendant’s First Amendment challenge, finding the restrictions on automated systems were “narrowly tailored” to serve Florida’s asserted substantial government interest, such that the FTSA survived the intermediate scrutiny that the court found applicable to a commercial speech restriction. Notably, the court rejected the defendant’s argument that under recent Supreme Court precedent (Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2346 (2020)), strict scrutiny should apply to content-based restrictions on commercial speech. 

Finally, the court rejected the defendant’s argument that the term “automated system” was unconstitutionally vague, finding the legislature need not define every term to clearly express its will and noting that the defendant used the same phrase “automated system” to describe its messaging software on its own website. 

Compliance is Still Key

It remains to be seen whether the FTSA will survive constitutional challenges in other cases pending in the Florida courts. At least in the short term, however, the FTSA’s expansive and ambiguous automated system prohibitions still apply to all companies doing business with consumers in Florida. To put themselves in the best position to avoid litigation, companies should implement procedures that comply with the new law for sales calls and texts to Florida residents. This means treating phone numbers with Florida area codes as if they belong to Florida residents in the absence of clear evidence that the phone number belongs to someone who resides in another state. When dialing these numbers, companies should secure prior express written consent in advance of calling or texting. Implementing procedures to ensure compliance with these provisions will help mitigate the risk of litigation under the FTSA.