On May 25, 2023, Florida Governor Ron DeSantis signed legislation amending the Florida Telephone Solicitation Act (“FTSA”). The amendment is intended to reign in the proliferation of individual and consumer class actions filed under the FTSA against businesses. The amendment covers several key areas.

Narrows Definition of an “Auto-Dialer.” Prior to the amendment, the FTSA defined an “automated system” as technology used for the “selection or dialing” of telephone numbers. The amendment modified the auto-dialer definition to require “selection and dialing” of telephone numbers. The change from the word “or” to “and” makes the definition of “auto-dialer” more restrictive. Click-to-dial and other systems that require manual processes are now likely exempt from the amended FTSA definition.

Conceptual Change to “Unsolicited” Calls. Prior to the amendment, the FTSA applied to “telephonic sales calls”, which are calls made other than (1) in response to an express request of the person called, (2) primarily in connection with an existing debt or contract, if payment or performance of such debt or contract has not been completed at the time of such call; (3) to a person with whom the telephone solicitor has a prior or existing business relationship; or (4) by a newspaper publisher or his or her agent or employee in connection with his or her business. The amendment now requires that prior express written consent be provided for “unsolicited telephonic sales calls.” Prior express written consent can be satisfied through “an act of 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.”

Safe Harbor for Text Messages. The amendments include 15-day safe harbor for text messages. Before bringing an action for damages based on unsolicited text messages, consumers must reply “STOP” to the sender, who then has 15 days to stop sending text messages (other than confirming receipt of the opt-out). Consumers can only file a lawsuit if the sender continues to send messages after the 15-day period expires. This safe harbor provision significantly reduces the risk of sending marketing text messages in Florida, and highlights, as always, the importance of recording and timely honoring opt-out requests.

Retroactive Application to Putative Class Actions. The amendments are effective as of May 25, 2023, but also apply retroactively to any putative class action that has not yet been certified.