The Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, has been a thorn in the side of the telemarketing industry since its enactment. A recent amended to the FTSA provided much needed relief. On May 25, 2023, the Governor of Florida signed a bill containing this new amendment. The amendment became effective upon the Governor’s signature. The amendment contains a number of changes that are favorable to the telemarketing industry. Below is what the telemarketing community should know about this new FTSA amendment.What to know:• “Selection or Dialing” becomes “Selection and Dialing” Prior to May 25, 2023, it was a violation of Section 8(a) of the FTSA to make “telephonic sales calls” that involved an “automated system for the selection or dialing of telephone numbers,” if the calling party had not received the “prior express written consent” of the called party. The phrase “selection or dialing” made compliance with the FTSA difficult to navigate. The new amendment has changed that.It is now a violation of Section 8(a) only if one makes an “unsolicited telephonic sales call” that involves an “automated system for the selection and dialing of telephone numbers.” This change is significant because it should no longer be a violation of FTSA to upload a list of telephone numbers to a system for the system to dial. In that scenario, the system is not selecting the telephone numbers to be called and dialing those numbers. It is only dialing telephone numbers, which now does not violate the FTSA. • Prior Express Written Consent”“Prior express written consent” remains an applicable defense to a Section 8(a) under the new amendment. The new amendment expands how such consent can be obtained. FTSA requires prior express written consent to bear the signature of the called party. The new amendment adds that a “signature” can now be provided through an act that demonstrates express consent, such as checking a box indicating consent, or responding affirmatively to an advertising campaign, e-mail solicitation, or text message.• “Telephonic Sales Call” vs. “Unsolicited Telephonic Sales Call”Under the new amendment, Section 8(a) now only applies to “unsolicited telephonic sales calls.” It previously applied to all “telephonic sales calls.” The significance of this change comes from how the FTSA defines, or doesn’t define, “unsolicited telephonic sales call.” Excluded from the definition are calls made in response to an express request of the person called, calls made primarily in connection with a current existing debt or contract, and calls made to a person with whom the telephone solicitor has a prior or existing business relationship. As a result of this change, the FTSA now provides more defenses for alleged automated system violations than the Telephone Consumer Protection Act (“TCPA”) provides for alleged “automatic telephone dialing system (“ATDS”) violations. For example, an existing business relationship is not a defense to an ATDS claim brought under the TCPA.• FTSA Text Message Lawsuit PrerequisitesThe amendment adds new prerequisites for lawsuits brought by individuals based on their receipt of text message solicitations. Before an individual can file suit under the FTSA for their receipt of an unwanted text message solicitation, he or she must respond to the text message with “STOP.” Upon the telephone solicitor’s receipt of that “STOP” text, it has 15 days to cease sending text messages to the text recipient. The text recipient will only be able to proceed with filing suit if the telephone solicitor continues to send text messages after the 15-day grace period expires.• Retroactive ApplicationFinally, the changes in this new amendment apply retroactively to any FTSA class action case that was not certified on or before May 25, 2023. This retroactive applicability is welcome news for defendants in such cases. Not only will they have more defenses at their disposal, but many defendants will seek the dismissal of FTSA claims as named plaintiffs are unlikely to have complied with the 15-day notice requirement. The retroactive application of this amendment is highly favorable to defendants. Therefore, plaintiffs will likely try to challenge it on constitutional grounds.
