Are Your Company’s Marketing Calls and Text Messages Compliant with Florida Law? Are You Sure?

Any business that promotes its services through telephone or text-message marketing to Florida consumers must now be wary of the Florida Telephone Solicitation Act (“FTSA”).1 In July 2021, the Florida Legislature enacted a newly expanded version of the FTSA, and as a result, hundreds of lawsuits alleging violations of the statute have flooded the Florida and federal court systems.

The FTSA imposes strict requirements for companies to obtain consent from Florida consumers to receive marketing calls or text messages. In other words, any company placing marketing calls or text messages to a Florida area code, from anywhere in the country, is subject to these legal requirements or they will face fines for each call or text message.

What Does the FTSA Require for Compliance?

1. Prior Express Written Consent

If a business uses an “automated system” to place phone calls or send text messages to advertise its services, the business must first obtain the “prior express written consent” of the called party.2 While “automated system” is not defined in the statute, “prior express written consent” is defined to mean a written agreement that (1) bears the signature of the called party, which can be an electronic or digital signature; (2) clearly authorizes a person or company to place a telephonic sales call, including text message, to the called party; (3) includes the phone number of the called party; and (4) includes a “clear and conspicuous disclosure.”3

2. Disclosure of the Company’s Name and Phone Number

Another requirement of the FTSA is that, if a company makes marketing calls or text messages, the company must provide the called party with (1) the name of the company making the calls or sending the text messages, and (2) a phone number that is answered by, or can be directed to, the company.4

Damages for Noncompliance

If the marketing calls or text messages are not in compliance with the FTSA, the called party can bring a lawsuit to recover actual damages or $500 per call or text message, whichever is greater.5 Making matters worse, if a court determines the company willfully or knowingly violated the FTSA, the court may increase the damages up to $1,500 per call or text message.6

Although many class actions have already been brought and settled under the FTSA, a certain Florida statute might help to curb such class actions and limit a consumer’s lawsuit to only their individual claims. Section 768.734, Florida Statutes, provides as follows: “Notwithstanding any

law to the contrary, in order to maintain a class action seeking statutory penalties under chapter[]…501…, the class action claimants must allege and prove actual damages.” (Emphasis added). Because the FTSA falls under chapter 501, this section would presumably apply to class actions brought under the FTSA, requiring claimants to allege and prove actual damages. However, there has not yet been any Florida case law applying section 768.734 to FTSA class action claims.

Tips for Compliance

Given the harsh penalties under the FTSA, and the number of lawsuits that have already been filed, companies should be proactive in ensuring their marketing calls and text messages are compliant with the statute. Here’s a good place to start:

1. Before placing marketing calls or text messages to Florida residents, obtain their signature in an agreement meeting the above requirements—the signature can be electronic

2. Use the exact language from the statute related to the company’s disclosure, which should inform the called party as follows:

• By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using 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; and
• He or she is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.

3. Maintain an electronic system that records and tracks any prior express written consent obtained from all persons receiving marketing calls or text messages.

Conclusion

In sum, companies must be aware of the new requirements that may dramatically affect their marketing practices directed at Florida consumers. Companies that conduct a proactive review of such practices, before they have to react to a problem or deal with an avoidable liability, will not only save time and money but also avoid complex litigation.

If you need legal counsel in resolving an FTSA claim, call the experienced attorneys at Rabin Kammerer Johnson.

_________________

1 § 501.059, Fla. Stat.
2 § 501.059(8)(a), Fla. Stat.
3 § 501.059(1)(g)(1)-(4), Fla. Stat.
4 § 501.059(8)(b), Fla. Stat.
§ 501.059(10)(a), Fla. Stat.
6 § 501.059(10)(b), Fla. Stat.
7 § 501.059(1)(g)(4), Fla. Stat.