The Florida Telephone Solicitation Act (FTSA), effective July 1, 2021, has undergone significant amendments as of May 25, 2023, reshaping the legal landscape for businesses in Florida. Initially, the FTSA created a private right of action for unwanted calls and texts, leading to over 500 complaints within a year. To clarify the FTSA’s ambiguities, Florida legislators introduced new bills, resulting in Gov. Ron DeSantis signing HB 761 into law, modifying the FTSA to bring more clarity for businesses contacting consumers via calls and texts. One crucial aspect of the amendment is its applicability to cases without granted class certification as of the amendment’s effective date. This change aimed to address the surge in “gotcha” litigation. Despite arguments from the plaintiff’s bar challenging the amendment’s constitutionality, two recent court decisions have upheld its validity. This blog post will discuss the implications that these decisions may have on the future landscape of the FTSA in Florida.
Effective July 1, 2021, the FTSA created a private right of action for consumers who receive unwanted calls and text messages. The FTSA applies to any business sending inbound text or calls into Florida, even if they are not organized under Florida law and have no physical presence in Florida. The FTSA removed many of the protections that businesses rely upon in defending claims under the Telephone Consumer Protection Act (TCPA). The FTSA prohibits the use of certain automated dialers to call (or text) consumers without their consent and enables consumers to recover $500 per call. Those damages are trebled for willful violations, resulting in a maximum potential liability of $1,500 per call.
The FTSA triggered a host of lawsuits and caused numerous challenges due to its ambiguity. The FTSA was thus amended in 2023.
The definition of an “auto-dialer” was substantially narrowed. The original FTSA language described an “automated system” as a tool for either “selection or dialing” of phone numbers. The updated definition shifts to “selection and dialing,” tightening the criteria for what constitutes an “auto-dialer.” As amended, a violation of the FTSA would only occur where the automated system is used to both select and dial telephone numbers. This clarifies that calling technology must meet a two-part test to qualify as an automated system.
The FTSA originally prohibited “telephonic sales calls” if it involved the use of an automated system for the selection or dialing of phone numbers. This created ambiguity as to whether the prohibition applied to calls made pursuant to a nonwritten request to be called, such as inbound calls from a consumer. The amendment clarifies that the prohibition applies to certain “unsolicited” telephonic sales calls. Unsolicited calls, among other things, are calls made other than in response to an express request of the person called or to a person with whom the telephone solicitor has a prior or existing business relationship.
Additionally, the amendments introduce a 15-day opt-out period for text message communications. Before initiating legal action over unsolicited texts, consumers must respond with a “STOP” message. The sender then has 15 days to cease sending texts, except for a confirmation of the opt-out. Legal action is permissible only if the sender fails to comply after this period. This provision significantly diminishes the legal exposure for marketers sending text messages in Florida, underscoring the importance of diligently recording and respecting opt-out requests.
Significantly, under Section 2, the amended FTSA applies “to any suit filed on or after the effective date of this act and to any putative class action not certified on or before the effective date of this act.” The effective date of the amended FTSA is May 25, 2023.
Recent Decisions Upholding the FTSA Amendment
In Holton v. eXp Realty, LLC, CASE NO. 8:23-cv-734-SDM-AEP (M.D. Fl. Dec. 28, 2023), the plaintiff, on behalf of himself and putative class members, sued eXp Realty, LLC, and alleged that eXp’s text messages violated FTSA. eXp argued that because Holton never alleged replying “STOP” and because Holton failed to certify his class action on or before May 25, 2023, the amended FTSA bared both Holton’s individual claim and his class action. The plaintiff responded that “retroactively” applying the amended FTSA unconstitutionally infringed his and each class member’s vested rights. The defendant countered that the plaintiff enjoys no vested right to represent a class.
The court reasoned that “the amended FTSA’s application to a class is wholly prospective and the amended FTSA applies only to a class certified after May 25, 2023.” Because the plaintiff’s class remains uncertified and he fails to allege that each member of his proposed class replied “STOP” to an unsolicited message, the amended FTSA bars the plaintiff’s class action. The court further noted that “Holton possesses no vested and inviolable right to represent a class.” And, similarly, “the proposed class members hold no vested and inviolable right, free from lawfully imposed requirements, to coalesce and litigate as a class.” The court thus remanded to state court as the Class Action Fairness Act (CAFA) no longer supported subject matter jurisdiction.
In a different case recently heard in state court, Leigue v. Everglades College, Inc. (Case No. 2022-008872-CA-01), the court also faced a legal challenge against the amended FTSA. The contention in that case was that the amendment unconstitutionally overstepped by improperly regulating procedural law. The court ultimately determined it was precluded from considering constitutional challenges when the defendant failed to promptly serve the attorney general with notice of the constitutionality challenge. Although the court declined to rule, it did take time to point out that it “agrees with Defendant that even if Section 768.734 contains some procedural aspects, Florida courts have consistently upheld the constitutionality of statutes containing both substantive and procedural provisions.”
Businesses currently entangled in class action lawsuits under the FTSA should take full advantage of the recent FTSA amendment. These legal shifts offer valuable tools for navigating the complexities of such litigation. Additionally, it is crucial for businesses engaged in consumer texting to diligently maintain records of opt-outs. This practice is essential not only for compliance but also as a strategic measure to mitigate the risk of future class action exposure under the FTSA. As the legal landscape continues to evolve, proactive and informed management of these issues will be key for businesses operating in this space.