With advances in technology and business marketing come changes in the law and new litigation. Many businesses are familiar with the federal Telephone Consumer Protection Act (TCPA) but may be less familiar with Florida’s version, the Florida Telephone Solicitation Act (FTSA). A recent wave of class-action lawsuits stems from a 2021 amendments to the FTSA, largely focusing on businesses utilizing phone calls and text messages to advertise their products and services. The following examines nuances of the FTSA and why the measures businesses may put in place to comply with the TCPA may not pass muster in Florida.
Difference Between the TCPA and FTSA
The critical difference between the TCPA (as currently interpreted by the Supreme Court) and the FTSA is set forth in Fla. Stat. §501.059(8)(a). Specifically, 8(a) provides: A person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.
Under both the TCPA and the FTSA violations require the use of automatic equipment. However, while the Supreme Court has clarified that to qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store or to produce, a telephone number using a random or sequential number generator, the FTSA does not currently include a similarly limited definition. Rather, the FTSA’s lack of a definition has opened the door for plaintiffs to argue that any automated system that dials numbers or selects the order in which numbers are dialed would fit within the statute. In short, if a business’s automatic equipment dials from a list, it will likely not implicate the TCPA but still may create risk under the FTSA. This is a critical point as in today’s technological environment, it is far more likely for entities to utilize a list for outreach rather than a random or sequential number generator.
In addition, the FTSA’s 2021 amendments added a requirement to obtain prior express written consent for such telephonic sales calls. The amendment also includes the elements prior express written consent should contain.
The FTSA’s Critical Components
As noted, the FTSA prohibits all telemarketing sales calls, text messages, and direct-to-voicemail, also known as “ringless voicemail” messages, using an “automated system for selection or dialing of telephone numbers or playing of a recorded message” without prior express written consent. In other words, it is against the law for a company to utilize automated telephone dialing systems or pre-recorded messages in all telemarketing sales calls, text messages, or direct-to-voicemail messages without the prior express written consent of the individual receiving the call.
The law itself covers only Florida residents. The FTSA contains a rebuttable presumption that a call made to any Florida area code is made to a Florida resident or a person in Florida at the time of the call. The FTSA has been enforced against businesses located and incorporated outside Florida. While there may be legal challenges on this issue, it is imperative that out-of-state businesses ensure their communications to Florida residents comply with the FTSA.
Private Right of Action
Under the FTSA’s private right of action, any violation for automated calls and do-not-call violations allows for a right to recover $500 in statutory damages. The FTSA also provides for up to $1500 in treble damages for willful or knowing violations in damages, plus attorneys’ fees.
Similar to the TCPA, the FTSA’s private right of action is not limited to automated calls but includes other violations such as calls to persons registered on Florida’s do-not-call list or making calls that fail to transmit the caller’s originating telephone number.
Based on the unique structure and provisions of the FTSA, in the past year, businesses have faced a voluminous number of FTSA claims, normally pled on a class basis. This means that an individual who brings an action claiming that he or she did not provide prior written consent to receive an automated text message or phone call brings the action individually and on behalf of all Florida residents who also received texts or calls from the same business dating back to the amendment to the FTSA in 2021. As such, potential damages for a thousand-person putative class can quickly climb to six or seven figures. Thus, compliance is key.
Currently, defendants challenge the amendments to the FTSA by arguing that the Act is unconstitutional, plaintiffs do not have standing or actual harm, the cases should not be treated as class actions, and a myriad of other arguments. While these legal challenges continue, companies across the nation that conduct business and marketing in Florida should ensure their consents and practices comply with this law.
If you have questions regarding FTSA or related issues please reach out to a member of our Privacy, Data, and Cybersecurity practice group to discuss.