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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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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

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Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach, and its headquarters in West Palm Beach. With over 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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