In July 2021, telemarketing law was turned on its head by the Florida Legislature’s revised Florida Telephone Solicitation Act (FTSA), which created new and burdensome restrictions for businesses telemarketing to Florida consumers. The FTSA prohibits placing telemarketing calls or sending marketing text messages using “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message” without first obtaining the recipient’s “prior express written consent.” § 501.059(8)(a), Fla. Stat. The FTSA created a significant ambiguity by failing to define what an automatic telephone dialing system is—and its onerous requirements apply retroactively to July 2021—resulting in a cascade of FTSA class action filings against Florida businesses. Perhaps inadvertently, the legislature’s current definition of “automated system” could be interpreted as an unprecedented expansion of the federal autodialer definition under the Telephone Consumer Protection Act (TCPA).
Recognizing the confusion created by the FTSA’s lack of clarity, last month state legislators introduced House Bill 1095 and Senate Bill 1564, both of which include a few important changes to the FTSA. Both bills seek to clean up the definition of “automated system”, alter the requirements for obtaining prior express written consent, and implement the ability to recover prevailing party attorney fees. Senate Bill 1564 closely aligns the FTSA with the TCPA’s autodialer definition, closing the door more tightly on class action cases against businesses that send marketing messages from a list of subscribers. House Bill 1095’s definition of “automated system” is broader, and may be seen as less favorable to businesses, as it includes click-to-dial systems and systems in “which the caller or any person selects telephone numbers from a list to call.” House Bill 1095 also includes precise language and font size/location requirements for obtaining consumer consent. If the House Bill passes, it may require businesses to alter their approach when obtaining customer consent for marketing campaigns, and savvy plaintiffs’ lawyers will continue to exploit the law’s trappings to their advantage.
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