Matthew Liebert, Esq. Business Litigation
Does your business use text messages, calls, or other forms of telecommunication directly to Florida residents to promote your products and services? If so, it is important to familiarize yourself with applicable Florida consumer protection laws to avoid costly litigation and potential liability.
By Business Litigation attorney Matthew Liebert, Esq.
The Florida Telephone Solicitation Act
The Florida Telephone Solicitation Act, Florida Statutes §501.509 (FTSA), was originally enacted in 1987. The FTSA prohibits “telephonic solicitors” from making sales calls to residential phone numbers, mobile phone numbers, or paging devices that were included on the Florida Department of Agricultural and Consumer Services’ (FDACS) no call-lists. The FTSA also prohibits sales calls to consumers or businesses who previously opted out of such communications. Finally, the FTSA prohibits the use of an “automated system for the selection or dialing of telephone numbers,” unless the consumer has provided “prior written consent” for receiving such a communication. The prior written consent must include:
1) the signature of the called party (in 2023, the definition of “signature” was expanded to include “an act that demonstrates consent,” permitting consumers to check a box on an electronic notice in lieu of an actual signature),
2) clear authorization to receive calls or texts from the calling party using an automated system,
3) the called party’s telephone number, and
4) a disclosure that the agreement authorizes the calling party to place sales calls, but that signing the agreement is not a condition to conducting business with the calling party.
In 2021, the Florida Legislature made significant amendments to the FTSA. Most notably, a private right of action was created authorizing a consumer to sue for injunctive relief (e.g. for the company to cease contact) and recover either $500 per violation or actual damages, whichever is greater. The prevailing party in such litigation is entitled to their attorney’s fees. Trial courts were also authorized to award treble damages (tripling a plaintiff’s recover) for willful and knowing violations of the FTSA. Hundreds of new individual and class action lawsuits were filed after these amendments became effective on July 1, 2021.
In 2023, the FTSA was amended again, in part to curb the number of private lawsuits filed. The expanded definition of “signature” noted above bolsters a company’s ability to demonstrate the party’s consent using online and social media forms. The most significant amendment was the creation of a notice requirement. Before a consumer can file a lawsuit, the consumer must provide notice that they do not wish to receive communications by texting “STOP” to the calling party. The calling party then has 15 days to cease marketing texts or calls. The called party may only file suit if the calling party sends another text or calls after the 15-day notice period. Given the recency of these amendments, their scope and meaning and will likely be further defined by the courts.
Practical Tips
Companies that use telemarketing directly to Florida consumers should evaluate their policies and procedures and consider the following:
- Opt-Out Policies: should put in place mechanisms to ensure that a consumer’s election to opt-out of future communications is timely honored.
- Consent: Since the 2023 amendments to the FTSA took effect, companies may obtain “express written consent” through an actual signature or use of a checkbox. Best practices include obtaining the required consent at the first interaction with the consumer and including a plainly visibly statement that the consumer is providing consent to receive marketing text messages by signing or checking the box.
- Strictly Comply with Policies: given the potential for litigation, companies are well-advised to establish systems to check and double-check compliance with internal policies. Such systems should periodically confirm that a written consent is on file for every point of contact and the appropriate actions are taken to remove a consumer once an opt-out is received.
- Consult an Attorney: To best allow your company to understand the requirements of the FTSA and its applications to new technologies, it is always prudent to speak with an attorney experienced in the area.
If you would like to speak with a litigation attorney regarding these issues, please call 941.748.0100 or email Matt Liebert at mliebert@blalockwalters.com.
