The Florida Legislature gave (to the Telemarketing Plaintiffs Bar) July 2021 when it amended the Florida Telephone Solicitation Act (FTSA). This same state legislature could now remove and remedy some of the class-action abuses its amendments created.
Last month, as part of a deep dive into the legislative history of the FTSA, we glimpsed a major source of ambiguity in the law that was heightened in July 2021. That’s when that Florida changed the law to include a private right of action and uncapped statutory damages between $500 and $1,500 for each telemarketing call or text message that violates the FTSA’s autodial provision.
Specifically, the FTSA prohibits making telemarketing calls or sending marketing text messages with “an automated system of selecting or dialing telephone numbers or playing a recorded message when the connection is established” without having previously obtained the “prior express written consent of the addressee”. ”Fla. Stat. § 501.059(8)(a).
Sharp-eyed readers will notice a pesky “or” where the federal Telephone Consumer Protection Act (TCPA) definition of an “automatic telephone dialing system” uses an “and”. 27 USC § 227(a). This small difference could mean that using a system that selects numbers, even if those numbers are then manually dialed by a living human, could still be a potential violation of the FTSA. The July 2021 amendment did not restrict this language, and despite a massive influx of FTSA class action lawsuits, there has been no ruling or indication as to whether the Florida Legislature inadvertently created an unprecedented extension. of the definition of the autodialer.
This month, state lawmakers introduced Florida House of Representatives Bill 1095 to address this small issue with huge implications and refocus the consumer harm law that led the legislature to enact the Autodialer Act in 1978, which later became the FTSA in 1990. Indeed, long ago, when in 1978 the Florida Senate explained the “why” of enacting an Autodialer Act automatic dialers:
[E]electronic systems allow automatic sequential numbering. . . [and] deliver a recorded pitch. . . When automated systems are used and programmed for a specified duration for each call, most telephone companies in Florida do not have the equipment that allows a disconnect when a subscriber hangs up. Thus, a subscriber who receives an automated and recorded call and who hangs up cannot use his telephone until the scheduled call has ended.
It was the same kind of random-firing, “blocking of telephone lines” concern voiced by TCPA editors about a decade later. To its credit, the Florida Legislature expressed “some doubts about the constitutionality of prohibiting only one type and method of telephone solicitation”, “discrimination[ing] . . . between automated and non-automated systems.
House Bill 1095 amends the FTSA to better align with the TCPA’s definition of autodialer. If passed, the proposed amendment would prohibit sending calls or text messages with “an automated system of selection and [
or] dialing telephone numbers or listening to a recorded message when the connection is established” without first obtaining the express written consent of the recipient. Good news for sure.
But note that the bill also contains amendments limiting the effect of consent. First, it limits the time during which a telemarketing call or text message can be made or sent in response to “an express request” to 120 days after the request is made. And second, the bill limits to two the number of telemarketing calls or marketing text messages that can be made or sent in response to an initial request from the recipient. Although these are tedious compliance obligations, most telemarketers would probably appreciate the amendment as a whole.
We will continue to provide updates on the FTSA as the legislature and the courts move forward.