We aim to highlight the importance of due diligence in lead campaigns and to keep our customers and industry associates up-to-date with the compliance news reported for our industry. This article is reprinted here for our readers, courtesy of our legal partners Troutman Amin LLP, TCPA World.
Definitive Look At The New FTSA Amendments That Just Changed Everything (Buckle Up)
TCPAWorld is an absolutely incredible place.
One day Florida has the most feared state-level anti-robocall statute on the books. The next day, it is essentially wiped out. Sort of.
The Florida state Senate has just passed an amendment to the FTSA that was previously passed by the House. All that is left is for the bill to be signed by the governor–which is widely expected–and the FTSA will be watered down in several CRITICAL respects.
So hold on and let’s break this down.
Here is a summary of the changes and the impact
“Autodialer” Definition Narrowed
Up until today the Florida Telephone Solicitation Act (FTSA) contained the broadest definition of autodialer in America. This was important because it allowed the statute’s restrictions to apply to a huge number of dialing devices used by telemarketers to contact consumer’s cell phones. For instance, even fast-paced “click to dial” systems were swept within the definition.
The new amendment, however, modifies the autodialer definition to require a system to BOTH automatically select AND dial numbers to trigger the statute. This means that predictive dialer systems are still likely covered under the statute–but maybe not–whereas click to dial and other forms of manual processes are now exempt from FTSA coverage.
Only “Unsolicited” Calls Covered
The FTSA previously applied to all telephonic sales calls made using regulated technology unless the caller had express written consent. The new amendment, however, limits the reach of these provisions to callers making “unsolicited” calls.
That means calls made with an established business relationship and those made in response to an inquiry no longer trigger this portion of the FTSA’s provisions.
In other words, telemarketers can will soon be able to use robocalls to contact customers to sell products and services so long as the consumer is a current customer.
15 Day Notice Required Before Suit Can Be Filed for Text Messages
Without a doubt the biggest change to the FTSA is the new notice requirement.
Before a consumer can sue for unwanted robotexts he or she must first give 15 days notice to the texter. This is an absolutely massive change in the law and one that will really help thwart the onslaught of FTSA suits–most of which are driven by text messages.
Essentially marketers can now send cold-call text messages to Florida consumers–subject to the time and contact limits found in a different provision of the FTSA–until they are asked to stop.
Of course, the TCPA has an additional level of protection afforded consumers, but it is amazing that Florida just went from a state with the tightest anti-robotext protections to handing marketers an absolute open-door.
Amendment to Apply Retroactively to Existing Cases! (Probably)
For Defendants facing a current FTSA class action the amendment purports to offer a strong dose of relief.
All of the changes are to be given retroactive impact in class actions–meaning they apply to pending class litigation as if the amendments had always been present.
That means folks pursuing a text message FTSA class action cannot prevail unless they demonstrate they asked for texts to stop at least 15 days before filing suit. While some Plaintiffs can probably make that showing many (many) cannot.
That will set up a massive test– can a statute be modified in a manner that thwarts existing claims by creating a procedural bar to suit that could not have been predicted at the time the suit was filed? Expect a wave of motions from FTSA defendants on this subject.
Amendments Effective As Soon as Governor Signs Off–Wave of Suits to be Filed?
As noted above the amendments do not take effect until the Governor signs the bill but there is no waiting period once he does.
This means Florida courts can expect an absolute tidal wave of filings in the next few days as Plaintiff’s lawyers rush to beat the clock (whereas the amendments are to apply retroactively to class actions they do not apply retroactively to individual suits.)
We will report as soon as we learn DeSantis has signed off on the bill.
Other States to Follow?
Notably, Oklahoma currently has a bill on the books that basically mirrors the old version of the FTSA. Maryland has also adopted a Florida-style autodialer definition. Once these amendments take effect in Florida it will be interesting to see if other states follow suit.
What’s Left of the FTSA?
A decent amount.
First, unsolicited marketing calls made using autodialers for VOICE calls are still banned by the statute, as are unsolicited prerecorded calls. As before, these calls can result in a $500.00 fine–but businesses can make these calls to their customers with a business relationship.
Second, the FTSA’s antispoofing provision remains intact. The Plaintiff’s bar has recently argued that the use of shortcodes violates this provision. That seems like a real long shot, but it is worth noting that the use of “local touch” DIDs may still be determined to violate the FTSA.
Third, the FTSA’s timing and cadence limitations are not effected by this amendment. That means marketing communications must still cease at 8 pm in the called party’s time zone and no more than 3 attempts per 24 hours are permitted under the statute (unclear whether consent allows these provisions to be waived–so watch out.)
Take Aways
Amendments not yet effective–Governor needs to sign off. Avalanche of cases expected in the short term.
The most dangerous aspects of the FTSA that were driving “gotcha” litigation–broad autodialer definition, no EBR defense– were just destroyed.
Marketing texts just got a lot safer in Florida. With a notice requirement built in texters need to be more focused on honoring opt outs than gathering opt ins under the new FTSA. But beware the TCPA.
Voice channel still carries some risk, especially where local touch DIDs are involved. No notice required for these suits.
The FTSA’s time and contact count limitations live on.
Reach out to Troutman Amin, LLP if you have questions on any of these issues. We will be filing motions to dismiss FTSA suits as fast as you can say Deserve to Win.
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