Substantial Amendments to Florida Laws Regarding Marketing Calls and Text Messages
As previously discussed here, Florida has specific laws related to how businesses can promote their goods and services through telephone or text-message marketing to Florida consumers. These laws are referred to as the Florida Telephone Solicitation Act (“FTSA”).[1] The Florida Legislature, however, recently amended the FTSA to curb the flood of litigation that resulted from its implementation.[2]
In general, the FTSA prohibits businesses from making marketing calls and sending marketing text messages with an “automated system” without the “prior expressed written consent” of the called party. But the prior version of the statute spurred overwhelming amounts of litigation due to its broad applicability.
Parts of the FTSA That Were Amended
- Solicited Calls and Texts are No Longer Prohibited
Under the prior version of the FTSA, even consumers who solicited marketing calls or text messages themselves could arguably bring a claim under the Act. As amended, liability under the FTSA is limited to calls or text messages that are “unsolicited.” In other words, businesses can now call and text customers who expressly request the contact, such as by inputting their phone number on a website.
- Narrowed Definition of Automated System
The amendment narrows the definition of an “automated system” used to dial numbers. Under the prior definition, an “automated system” included a system that was used to either automatically select or automatically dial numbers, which could include a wide variety of technology. Now, an “automated system” only includes one that automates both the selection and dialing of telephone numbers.
- Acts Demonstrating Prior Express Written Consent
Previously, it was unclear what could qualify as meeting the high standard for “prior express written consent.” For instance, was checking a box on a website sufficient? The recent amendments, however, clarify that for purposes of prior express written consent, a “signature” includes “[a]n act 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 e-mail solicitation.”
- “Stop” Requests are Now a Condition Precedent to Bringing a Lawsuit
Finally, the FTSA now requires consumers to submit a “stop request” to a business before bringing a lawsuit. Under the prior version of the FTSA, businesses could be liable for calls and text messages regardless of whether the consumer asked the business to stop communicating with them. Now, before a consumer can file a lawsuit under the FTSA, the consumer must request that the calls cease or reply “STOP” to the sender of text messages. After such “stop request” is made, the consumer must allow 15 days for the business to cease its marketing calls and/or texts. After the 15-day period expires, if the marketing calls and/or text messages continue, then the consumer can initiate litigation.
Conclusion
While there are still certain standards and practices businesses must follow to comply with the FTSA, these amendments have relaxed the previous stringent requirements that subjected them to liability for nearly any marketing calls or texts messages that were made.
If you need legal counsel related to an FTSA claim, call the experienced attorneys at Rabin Kammerer Johnson.
[1] § 501.059, Fla. Stat.
[2] Fla. HB 761 (2023).
