Florida’s legislature has sent changes to the Florida Telephone Solicitation Act (the FTSA) to the governor’s desk for signature that significantly restrict the scope of the act and the private right of action thereunder. These changes narrow the definition of technologies falling within the statute, clarify the process for obtaining consent, and impose a notice-and-cure requirement before allowing a suit to be brought. Notably, these changes would apply to all new actions and to all pending putative class actions in which a class has not been certified. These changes, if enacted, likely will have a broad impact on both current and future cases.
Both the Florida House and Senate have passed HB 761, which makes significant amendments to the FTSA, including:
- revising the phrase “automated system for the selection or dialing of telephone numbers” to “automated system for the selection and dialing of telephone numbers;”
- specifically recognizing that the signature requirement for prior express written consent includes checking a box indicating consent or affirmatively responding to receiving text messages to an advertising campaign or to an e-mail solicitation;
- limiting the prohibition on the use of automated systems to unsolicited telephone sales calls;
- instituting a requirement that a plaintiff may only bring a claim for damages for unsolicited text messages if the plaintiff: (1) asks for the text messages to stop, and (2) allows the caller 15 days to stop sending text messages; and
- applies the changes to actions started on or after the effective date of the act and any currently pending putative class action in which the class is not certified on or before the effective date of the act.
The first provision appears to be intended to adopt the “human intervention” analysis that many courts previously applied to the definition of an “automated telephone dialing system” under the federal Telephone Consumer Protection Act (the TCPA)1. The provision regarding consent clarifies that many workflows for obtaining consent that have been deemed to be compliant with the TCPA also comply with the FTSA. The notice-and-cure provision should allow companies with robust do-not-call procedures to effectively eliminate the risk of private suits. Finally, the provision applicable to pending putative class actions may give defendants in current actions significant protections against class certification and, therefore, reduce potential exposure in those actions.
We will continue to monitor court decisions as the new FTSA provisions are interpreted in litigation.
1 47 U.S.C. § 227