In July 2021, Florida passed the Florida Telemarketing Solicitation Act (FTSA), affectionately called the "mini-TCPA" by some. Like the Federal Telephone Consumer Protection Act (TCPA), FTSA amended Florida's pre-existing laws governing use of autodialers to provide a private right of action to consumers who receive telemarketing calls using such technology without prior express written consent. Aggrieved consumers can recover $500 per violation or $1,500 per violation if the violation is willful or knowing. But FTSA went a few steps further, including by:
- Expanding the scope of equipment regulated by FTSA to include "an automated system for the selection or dialing of telephone numbers." This term was undefined, but as worded, can include nearly all equipment used to place outbound calls;
- Expressly stating it applies to both phone calls and text messages;
- Removing a prior exemption for calls placed to individuals with whom the caller had an established business relationship; and
- Including a prevailing party attorneys' fees provision "in any civil litigation resulting from a transaction involving a violation" of the act.
Since the amendments to FTSA went into effect, Florida has been one of the most challenging states for businesses engaging in telemarketing whether by phone call or text message. In the nearly two years since FTSA became law, hundreds of FTSA lawsuits have been filed; a large percentage of which were framed as class actions. And, an overwhelming percentage of these lawsuits arise out of text messages sent to consumers.
But now there's some good news!
First, on May 3, 2023, the Florida legislature voted to amend the FTSA. The amendments, which drastically change the landscape for businesses engaging in telemarketing in Florida, include:
- Revising the scope of equipment regulated by FTSA to include an "automated system for the selection and dialing of telephone numbers." This term is still undefined, but, as revised, the scope of equipment regulated is significantly narrowed and likely does not cover click-to-dial systems or systems that require human intervention;
- Allowing consumers to provide prior express written consent by checking a box or responding to a text message/email;
- Clarifying the called party only needs to disclose the use of a prerecorded message, where such equipment is actually used;
- Effectively, adding back in the established business relationship exception by confirming the restrictions on use of autodialing equipment only apply to unsolicited telemarketing calls/texts; and
- Adding a pre-suit notice and cure requirement, before a plaintiff can bring a claim for text messages sent in violation of FTSA. Under this provision, a consumer must first respond "'STOP' to the number from which the called party received" telemarketing text messages. Callers must comply with the STOP request within 15 days. If the caller fails to comply with the STOP request, then, and only then, can a plaintiff proceed with filing a lawsuit.
Governor DeSantis is expected to sign these amendments into law in the coming days. The amendments become effective as soon as Governor DeSantis signs the bill, and apply to any currently pending class actions which have not yet been certified. There is speculation some in the plaintiffs' bar may try to challenge the applicability of these amendments to currently pending lawsuits.
But, that brings us to the second piece of good news!
Florida's Third District Court of Appeal recently held plaintiffs alleging bare procedural violations of TCPA (FTSA's federal analog) do not have standing to state a claim, even in state court. In Eldridge v. Pet Supermarket Inc., No. 3D21-1174 (May 10, 2023), plaintiff originally filed his lawsuit in federal court, but the district court dismissed the claims for lack of Article III standing. Plaintiff refiled in Florida state court and defendant moved for summary judgment on the grounds plaintiff lacked standing. In response, plaintiff argued he was not required to prove an actual injury because Florida standing requirements are "more relaxed" than Article III standing. The Third District Court of Appeal disagreed holding "Florida law also imports an injury in fact requirement under our standing framework." In other words, a TCPA/FTSA plaintiff "must still demonstrate a concrete harm or injury from the [] violation to demonstrate his standing in a Florida state court." The Third District Court of Appeal rejected plaintiff's argument that he had demonstrated standing by alleging the text messages invaded his privacy. Looking to Florida state law on the tort of intrusion upon seclusion, the court held for a text message to give rise to standing under Florida law, the plaintiff must be able to show the "intrusion was highly offensive to a reasonable person."
As a result, even if courts conclude these FTSA amendments do not apply to lawsuits which were pending before the amendments became effective, those claims are still likely to fail because most, if not all, of the plaintiffs in those lawsuits do not have standing to state a claim.
