June 22, 2023

Florida Amends Mini-TCPA, Clarifies Confusion

Nearly two years ago, the Florida legislature amended Florida’s Telephone Solicitation Act (FTSA), Fla. Stat. § 501.059, resulting in voluminous consumer class action and other litigation after there had previously been next to none. Now, the Florida legislature has again amended the statute, and in several business-friendly respects. Specifically, on May 25, 2023, Florida Gov. Ron DeSantis signed HB 761 into law, amending the FTSA and reducing some of the risks faced by businesses marketing to consumers in Florida through calls and text messages. As the authors here have written previously, the FTSA originally contained significant inconsistencies with the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., with respect to prohibitions on marketing calls or texts and has faced multiple challenges on constitutional grounds since it was passed.

As FTSA litigation proliferated, the statute’s inconsistencies and ambiguities became a focal point for businesses defending these suits and attempting to comply. The statute’s ambiguity and resulting compliance challenges stemmed largely from two aspects of the statute.

First, FTSA Subsection (8)(a) prohibited sales calls and texts placed using an “automated system” without obtaining prior express written consent of the called party. That prohibition purported to apply to calling technology more broadly than the TCPA and failed to offer any definition of an “automated system.” As readers will recall, it was the lack of coherent definition of an “automated telephone dialing system” under the TCPA that caused years of confusion among courts and businesses alike before the U.S. Supreme Court in 2021 in Facebook, Inc. v. Duguid ultimately resolved the plain meaning of the definition.

Second, the FTSA’s so-called area-code presumption, providing that a sales call or text made to a number with a Florida area code is presumptively made to a Florida resident and, therefore, covered by the Act, presented businesses with a compliance challenge. That challenge arose from the reality that the area code associated with a cellular telephone number often does not correspond to where the user of that number resides or receives all calls.

The May 2023 Amendment to the FTSA, which became effective immediately upon the governor’s signature on May 25, 2023, affects Subsection (8)(a) by updating its prohibitions to apply to only “unsolicited” sales calls, and (as discussed in more detail below) by changing the definition of “automated system” to more closely conform to the TCPA’s definition of an automatic telephone dialing system (or “ATDS”), as confirmed by the Supreme Court. The amendment also updates significant definitions related to securing prior express written consent for calls and adds new restrictions on commencing a lawsuit based on text message solicitations. All of these changes “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.” In other words, for any pending putative class actions, the amendment applies retroactively by its express terms.

The amendment does not bring the FTSA into complete conformance with the TCPA, and so additional compliance measures for marketing calls made to Florida residents and area codes are still required. However, these changes are a step in the right direction for businesses seeking reasonable reforms to an otherwise complicated and patchwork regime of state and federal laws.

Changes to Subsection (8)(a): “Unsolicited Telephonic Sales Calls” and “Automated System”

Significantly, the amendment (1) revises the statute to prohibit certain unsolicited telephonic sales calls and (2) clarifies that the prohibition applies to certain calls involving an “automated system” for the “selection and dialing of telephone numbers.”

Specifically, the amendment changes the language in Subsection (8)(a) as follows:

(8)(a) A person may not make or knowingly allow to be made an unsolicited a telephonic sales call to be made if such call involves an automated system for the selection and or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.

The addition of “unsolicited” to Subsection (8)(a) likely resolves an ambiguity in the original version of the law that made the prohibition apply to calls made pursuant to a nonwritten request to be called (e.g., inbound calls). Now, it is clear that the statute does not cover, and does not prohibit, calls placed to a consumer: (a) in response to an express request; (b) in connection with an existing debt or contract; (c) with whom the caller has an existing business relationship; or (d) by a newspaper publisher in connection with its business.

Next, under the original version of the law, Subsection (8)(a)’s prohibition applied to calls involving “an automated system for the selection or dialing of telephone numbers.” Based on the amendment, the restrictions now apply only to calls involving “an automated system for the selection and dialing of telephone numbers.” This change to the conjunction reduces the universe of possible telephony technology covered under the law and more closely matches the TCPA’s definition of an ATDS that similarly requires the technology to both generate the telephone number and then dial the telephone number. See 47 U.S.C. § 227(a)(1). In other words, for the FTSA to apply, an automated system must dial the telephone number, not just select it. Despite this change, however, the FTSA may still be construed to have a broader application than the TCPA because it is not explicitly limited to technology that randomly or sequentially generates phone numbers.

Prior Express Written Consent

The amendment also updates the law’s definition of “prior express written consent” and “signature” for purposes of giving such consent. For example, the amendment states that for purposes of the statute, a “signature” includes “[an] action that demonstrates 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 email solicitation.” This change clarifies that these additional forms of consent are sufficient for obtaining “prior express written consent,” which requires the “signature of the called party.”

Limitations on Text Message Solicitation Lawsuits

The amendment also adds restrictions on plaintiffs seeking damages for “text message solicitations.” Before filing such an action, “the called party must notify the telephone solicitor that the called party does not wish to receive text messages from the telephone solicitor by replying ‘STOP’ to the number from which the called party received text messages ... .” The person or entity that was sending marketing text messages then has 15 days “after receipt of such notice” to “cease sending text message solicitations to the called party” (with the notable exception of a confirmation text). After responding “STOP,” the consumer may then bring an action under the FTSA only if “the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice.” Businesses with good opt-out procedures and compliance mechanisms for honoring “STOP” text message requests will be able to avoid wrong-number and similar other mistake cases. Businesses should note that the 15-day compliance rule in the FTSA for text message opt-outs does not apply to telephone calls (only text messages) and also differs from the TCPA’s grace period, which provides that callers have in place a procedure for honoring do-not-call requests “within a reasonable time from the date such request is made,” not to exceed 30 days. 47 C.F.R. 64.1200(d)(3).

The FTSA Is Still More Restrictive Than the TCPA

Despite these business-friendly changes, the FTSA is still restrictive. The amendment did not alter the area-code presumption capturing calls to Florida area codes regardless of the individual’s location or actual residence. The definition of “automated system” also still encompasses devices that select and dial telephone numbers by automated means, not necessarily just “random or sequential number generator[s].” Callers operating marketing campaigns in Florida should continue to rely on prior express written consent when possible and implement procedures to ensure compliance with the procedures of the FTSA to mitigate the risk of potential litigation.