Effective July 1, 2021, a new law dubbed the Florida Telephone Solicitation Act (“FTSA”) – a/k/a, Florida’s “Mini-TCPA” created a private right of action for consumers who receive unwanted calls and text messages. The plaintiffs’ bar wasted no time in seeking to test the limits of the FTSA. More than 500 complaints have been filed as of the writing of this client alert. Recognizing the confusion created by the FTSA’s lack of clarity, state legislators introduced House Bill 761 and Senate Bill 1308. As Florida’s law firm for business, Gunster is paving the way to provide protections for businesses ensnared in the FTSA. Alexis Buese, who co-leads Gunster’s Class Action Defense team has been providing critical testimony during the Legislative Session. These amendments should be closely watched as they make their way to the floor.
The FTSA
The FTSA applies to businesses even if they are not organized under Florida law and have no physical presence in Florida. The FTSA removed many of the protections businesses rely upon in defending claims under the Telephone Consumer Protection Act (“TCPA”) and applies to businesses even if they have no physical presence in Florida. The FTSA prohibits the use of certain automated dialers to call (or text) consumers without their consent and enables consumers to recover $500 per call. Those damages are trebled for willful violations, resulting in a maximum potential liability of $1,500 per call.
The Proposed Amendments
Considering the growing number of class action lawsuits against businesses texting subscribers under the FTSA, the proposed amendments aim to strike the right balance between protecting consumers from spam or robocalls while protecting businesses from frivolous and costly litigation. Critically, HB 761 cleans up the definition of “automated system”, alters the requirements for obtaining prior express written consent, and creates a safe harbor provision for text messages requiring a user to text “STOP” back to the number. The amendment removed the effective date of the bill to upon becoming a law and removed a provision that would to apply to class actions not yet certified.
On the other end of the spectrum, SB 1308 offers little change for businesses. The definition of “automated system” remains largely unchanged. Further, the amendment heightens the consent standard to require a “signature” to include both 1) an electronic or digital signature “and” 2) “an act 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 e-mail solicitation. This amended definition requires consumers to submit an electronic or digital signature, which means that under this amendment a check box or an acceptance of the FTSA disclosure would be insufficient. The amendment also adds a safe harbor provision, but instead of requires a user to text “STOP” back to the number the text came from, this amendment allows the called party to revoke their consent to the telephone solicitor or “other person.” This means a person “can text their “STOP” to request to their neighbor and that would suffice as a do not call request. Under the amendment, it is not clear who the stop request should go to.
Given the high risk of FTSA class actions companies should keep a close watch on these amendments and consider their legal position should they pass while cases are pending. Virtually any business that contacts consumers using mobile marketing is at risk if doing business in Florida, regardless of industry or location.
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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.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 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, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 260 attorneys and consultants, and over 270 committed professional 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.
