In May, the Florida Legislature passed an amendment that significantly decreased the scope of liability under the Florida Telephone Solicitation Act (FTSA). Anyone in the telemarketing industry knows (or should know) how rigid Florida’s “Mini-TCPA” was. But when Florida passed this amendment, it undid much that was wrong with the prior version. At the very least, it made it far less unforgiving.
In late May, Governor Ron Desantis officially signed it into law. The significance of this cannot be understated. Much of this can be viewed as a direct response to the deluge of class action litigation that has emerged from the previous amendments made in 2021. In effect, this amendment drastically narrows private causes of action and addresses the following:
- Telephone sales calls
- Text messages
- Voice messages that use automated technology
- Limiting violations for unsolicited calls
- Approving a more flexible range of signatures to prove written consent to receive text and phone communications
- Implementing a 15-day “safe harbor” period for texting violations
Although we elaborate further below, the 15-day window allows telemarketing companies the chance to remove someone from their contact list after the caller has replied STOP. They can even text back after the “STOP” message to confirm receipt.
Let’s Talk Autodialers
The FTSA had an expansive definition of what an autodialer was, which is one of the reasons that it put telemarketers at such significant risk. Now, that risk is drastically reduced. (The emphasis below is ours.)
PREVIOUS LANGUAGE
“…automated systems for the selection OR dialing of telephone numbers…”
CURRENT LANGUAGE
“…automated systems for the selection AND dialing of telephone numbers…”
Words are meaningful, especially in the law, and although this change may appear subtle, it has enormous implications. Changing the conjunction, in essence, brings Florida’s definition of an autodialer in line with federal statutes.
Define “Unsolicited”
Under the old iteration of Florida’s Mini-TCPA, telemarketers were required to have express written consent before making any call using regulated technology (e.g., an autodialer). The scope and reach of the FTSA has now been narrowed because telemarketers can make calls to those with whom they have an established business relationship. In addition, telemarketers can now make calls in response to inquiries without fear of reprisal. In other words, companies can generally make solicitation calls to current clients or customers as well as to potential clients and customers who express their interest.
Another Way to Give Express Consent
What constitutes a signature? This amendment broadens the old standard by stating it is “an action 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 email solicitation.” This allows telemarketers much more flexibility when they seek consent.
For Those Who Are Defending Class Action Litigation
These changes will come as a tremendous relief to many. If you are already the focus of a class action lawsuit filed under the FTSA before the amendment, you may still be covered under the new rules. This amendment now applies to any putative class action not certified before the amendment was signed into law.
If you need further clarification regarding this amendment or have any questions about how this pertains to a lawsuit that has been filed against you, contact Cove Law, P.A., to schedule a free initial consultation. Our firm is here to provide legal guidance and unwavering support to those in the telemarketing industry.
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