On May 25, 2023, Governor Ron DeSantis signed into law HB 761 that amends the Florida Telephone Solicitation Act (FTSA) by narrowing the scope of the FTSA to curtail frivolous litigation. The new law makes the following amendments: (1) limits the definition of what constitutes an autodialer by requiring a platform to both automatically select and dial numbers to trigger liability; (2) clarifies that an act such as checking a box is express consent; (3) allows calls and messages to consumers with whom the solicitor has an established business relationship or in response to an inquiry; and (4) requires consumers who receive a text message in violation of the FTSA to reply "STOP" prior to filing suit.
These changes take immediate effect and apply to cases not yet filed and putative class actions not yet certified. Businesses engaged in telephone solicitation in the state of Florida should pay close attention to this new law and continue to ensure that their telemarketing activities strictly comply with the FTSA as well as its federal counterpart, the Telephone Consumer Protection Act (TCPA). Companies that currently have an uncertified class action pending should make sure to speak with experienced counsel on how to best utilize the amendment.
Gunster’s Government Affairs Law & Lobbying group played an integral role in the passage of this law. On behalf of its clients, Consultant Julie Fess and the government affairs team worked with individuals at all levels of the legislative body to achieve an amendment to the FTSA that protects the rights of the consumer while providing critical protections for businesses against lawsuit abuse. Alexis Buese, co-chair of Gunster’s Class Action Defense team, provided critical testimony before the legislative body in support of the amendments. Buese testified “[t]he amendment today is crucial because it brings much needed clarity to the FTSA. It will protect legitimate businesses who are simply texting with their subscribers while protecting consumers from unwanted spam calls.”
With HB 761, the Florida legislature has undertaken a course correction that brings common sense back to the FTSA.
We recommend that you speak with your class action defense lawyers to institute a robust compliance policy and navigate the contours of the new application to putative classes not yet certified.
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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 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.
