For businesses looking to solicit customers in Florida, the State just sent you a clear message: Beware. Effective July 1, 2021, a new law dubbed the Florida Telephone Solicitation Act (“FTSA”)– a/k/a, Florida’s “Mini-TCPA” – creates a private right of action for consumers who receive unwanted calls and text messages. Florida’s Mini-TCPA applies to businesses even if they are not organized under Florida law, and even if they have no physical presence in Florida. Companies that do business in Florida should know about the FTSA, risks for class action litigation, and incentives to plaintiffs’ attorneys to bring suit in Florida.
Florida’s Mini-TCPA prohibits the use of automated dialers to call (or text) consumers without their consent and enables consumers to recover $500 per call, with treble damages available for willful violations. The first major difference between the laws is Florida’s limits the applicability of the Mini-TCPA to “telephonic sales calls” – a definition which excludes debt collection and account servicing calls. This is a welcome sigh of relief for the much-maligned credit and debt collection industries who regularly deal with compliance concerns in this arena.
However, the remaining differences are less favorable to businesses. Florida defines an automatic dialer much more broadly than its federal counterpart – the TCPA – and will apply to significantly more dialing systems commonly used in the telemarketing industry. Florida’s new law also requires a consumer to give prior written consent before calls can be made, foregoing the TCPA’s common law rule of consent in which oral consent is sufficient. Florida’s Mini-TCPA has other nuances that can create pitfalls for businesses operating in Florida, including:
- Prohibiting the use of techniques to conceal or alter the caller’s name or telephone number;
- Removing the “established business relationship” exception found in the TCPA;
- Limiting the number of times a business can call a consumer to three per day; and
- Barring calls to consumers before 8:00 a.m. and after 8:00 p.m. in the consumer’s time zone. Importantly, Florida crosses two time zones, Eastern and Central, so businesses should be aware of how this may impact their marketing efforts.
Despite the law being in its nascent stages, given the unprecedented change to Florida law, the Mini-TCPA is already becoming a source of significant litigation. The Mini-TCPA has not gone unnoticed by plaintiffs’ counsel and all sorts of business are finding themselves defending class actions, from mortgage bankers, barbeque restaurants and dentists. These cases, which all involve text message campaigns, are merely the tip of the iceberg in what will be an explosion of new filings under Florida’s Mini-TCPA. Business should anticipate class action litigation issues early and take measures to comply with the new requirements.
For companies needing help navigating the new regulatory framework or for those defending against claims brought under the Act, Gunster’s team of experienced Corporate Law and Business Litigation attorneys are here to help.
Alexis Buese practices in all aspects of commercial litigation, including contract disputes, real estate and consumer class action litigation. She represents a wide variety of individuals and businesses, including hedge funds, oil and gas companies, real estate developers and owners, numerous consumer goods manufacturers and retailers, and e-commerce companies. Alexis has tried cases to verdict in state and federal court, as well as resolved complex disputes through arbitration. She has significant experience enforcing arbitral rights and awards and routinely consults with clients and transactional counsel to provide advice regarding the drafting and enforcement of alternative dispute provisions.
Derek Mountford is a litigator and problem solver who strives to achieve the desired result for his clients. Businesses face a variety of legal disputes, from large bet-the-company cases down to smaller matters. Each case requires a different approach that balances the need for efficiency with the need for a specific outcome. Derek understands these nuances and has experience working on a wide variety of cases. Derek has experience working on cases involving contract disputes, claims arising under the Uniform Commercial Code, government investigations, antitrust violations, and other general commercial disputes.
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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.
