United States: Florida Legislature Passes Bill To Bring Common-Sense Changes To The Florida Telephone Solicitation Act

Florida's legislature has sent changes to the Florida Telephone Solicitation Act (the FTSA)¹ to the governor's desk for signature that significantly restrict the scope of the act and the private right of action thereunder and are likely to have a broad impact. 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. The notice-and-cure requirement is likely to eliminate nearly all lawsuits brought under the FTSA against companies with compliant do-not-call policies. Notably, these changes would apply not just to new actions, but also to all pending putative class actions in which a class has not been certified.

These changes roll back the broader approach taken in the current version of the FTSA, which was enacted on the heels of the U.S. Supreme Court's decision in Facebook, Inc. v. Duguid.² In Duguid, the Supreme Court held that phone system qualifies as an automated telephone dialing system under the Telephone Consumer Protection Act (the TCPA) only if it has the capacity to use a random or sequential number generator to either store or produce phone numbers to be called. Following Duguid, the Florida amended the FTSA to take a broader approach, prohibiting any telephonic sales calls, whether solicited or unsolicited, that use "an automated system for the selection or dialing of telephone numbers" when made without the prior express written consent of the called party. The result was a flurry of new lawsuits brought under the FTSA.

With HB 761, the Florida legislature has undertaken a course correction.

First, HB 761 revises the phrase "automated system for the selection or dialing of telephone numbers" to "automated system for the selection and dialing of telephone numbers." While this revised definition still differs from the interpretation of "automated telephone dialing system" under the TCPA³ that was adopted in Duguid, it nevertheless significantly narrows the scope of the technology governed by the statute. This change may result in a return to the human-intervention analysis that many courts had adopted pre-Duguid.⁴

Second, the bill takes a more practical approach to what constitutes prior express written consent. The current version of the FTSA leaves open the question of whether certain TCPA-compliant consent methods are valid under the FTSA. The bill, however, specifically recognizes 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. This allows companies to continue using these common consent mechanisms that were specifically designed to comply with the TCPA, and effectively ends any argument that there is a difference in what consent mechanisms are required under the TCPA and the FTSA.

Third, while the FTSA currently prohibits the use of automated systems for any telephonic sales call, solicited or unsolicited, HB 761 limits the prohibition on the use of automated systems only to unsolicited telephone sales calls.

Fourth, the bill adopts 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. As a practical matter, this change eliminates any lawsuits based only on a single unsolicited text message and likely forecloses nearly all suits against companies with compliant do-not-call policies.

Finally, the changes apply 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. While plaintiffs are sure to challenge this provision, it is clear that the Florida legislature intends to relieve the pressure on companies currently defending FTSA suits alleging mere technical violations of the statute.

We will continue to monitor court decisions as the new FTSA provisions are interpreted in litigation, and are available to answer any questions you might have.

Footnotes

¹ Fla. Stat. § 501.059.

² Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1173 (2021)

³ 47 U.S.C. § 227(a)(1)

⁴ See, e.g., Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1312 (11th Cir. 2020) (finding that a dialing system was not automatic because it required a person to review the stored numbers that were selected for calling and then click a "make call" button).

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