Telemarketing Friendly Amendments to Florida Telephone Solicitation Act Signed Into Law

May 28, 2023/Richard Newman
The Florida Telephone Solicitation Act (“FTSA”) has long been criticized for numerous reasons, including an overly broad and vague autodialer definition.  Florida’s Governor recently signed HB 761, which makes significant, telemarketer friendly changes, to the FTSA (Fla. Stat. § 501.059).

Fewer Types of Telemarketing Equipment Covered

The amendments narrow the types of telemarketing equipment covered by the statute.

For example, prior the the amendments, autodialing restrictions applied to “automated system[s] for the selection or dialing of telephone numbers.”  Now, the amended autodialing restrictions apply only to “automated system[s] for the selection and dialing of telephone numbers.”  The foregoing effectively eliminates the legal argument that a dialing or texting platform falls under the statute even if the calling party manually selects or dials a telephone number to be called or texted.

Caveat, the amended version of the statutes continues to restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

Text Message Notice and Cure Period

The revised statute provides for a fifteen (15) day notice and cure period before a plaintiff is permitted to initiate formal legal action.  For example, by responding “STOP” to message.

Expanded Definition of “Signature”

The modified statute has a broadened definition of “signature” and includes “checking a box” and “responding affirmatively to receiving text messages.”  Digital signatures may be acceptable  to obtain prior express written consent provided that “such form of signature is recognized as a valid signature under applicable federal law or state contract law.”

Retroactive Application

Florida Telephone Solicitation Act class action cases that are not certified prior to the effective date of the statutory amendments are subject to the retroactive application of the new legislation.  It appears likely that the retroactive application provision will face legal challenges.  For now, FTSA defendants will attempt to utilize this provision as one of numerous potential defense arguments that seek to have pending FTSA class action lawsuits dismissed.

Takeaway: As modified and hoped for by telemarketers, the new law will curb the spate of frivolous Florida class action telemarketing lawsuits.  Telemarketers should be proactive when it comes to telemarketing compliance, including, but not limited to, established and developing state telemarketing legal regulations, the TCPA and the TSR.  Contact an experienced FTC compliance attorney with questions about the amended FTSA or if you are interested in the design and implementation of risk minimizing telemarketing policies and programs.

 

Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. 

Informational purposes only. Not legal advice. May be considered attorney advertising.

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Richard Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,
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About This Blog and Hinch Newman’s Advertising + Marketing Practice

Hinch Newman LLP’s advertising and marketing practice includes successfully resolving some of the highest-profile Federal Trade Commission (FTC) and state attorneys general digital advertising and telemarketing investigations and enforcement actions. The firm possesses superior knowledge and deep legal experience in the areas of advertising, marketing, lead generation, promotions, e-commerce, privacy and intellectual property law. Through these advertising and marketing law updates, Hinch Newman provides commentary, news and analysis on issues and trends concerning developments of interest to digital marketers, including FTC and state attorneys general advertising compliance, civil investigative demands (CIDs), and administrative/judicial process. This blog is sponsored by Hinch Newman LLP.

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