Marketing Calls? Avoid Legal Stress – Follow Fla. Law

TALLAHASSEE, Fla. – On July 1, 2021, Florida’s Telephone Solicitation Act (FTSA) took effect. Recognizing the prevalence of telemarketing in the state, Florida decided to update its telemarketing laws to regulate intrastate communications in a more restrictive manner than that of the Telephone Consumer Protection Act (TCPA).

The TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. Florida’s TCPA has become colloquially known as a Mini-TCPA. Since Florida updated its laws, other states, such as Washington and Oklahoma, have followed suit.

These regulations have been coined Mini-TCPAs because they are the state equivalents of the TCPA. Over the years, the TCPA has been subject to wide-ranging interpretation across various federal circuit courts. Florida saw the need to enact its own TCPA to ensure more consistent adjudication of telemarketing claims by its courts. As detailed below, significant differences exist between the TCPA and the FTSA.

Key differences between the TCPA and Florida’s telemarketing law

Because Florida’s telemarketing law is modeled after the TCPA, consumers are afforded many of the same protections. For example, both afford consumers a private right of action, and both carry statutory damages of $500.00 – $1,500.00 per violation. However, there are several key differences between the FTSA and TCPA.

The most important difference between the TCPA and Florida’s telemarketing law is their respective treatment of dialing systems. The TCPA prohibits the use of an “autodialer” to send telemarketing communications without a consumer’s prior express written consent. The Supreme Court’s decision in Facebook Inc. v. Duguid clarified that “autodialers” are comprised of equipment which has the capacity either to store or to produce telephone numbers using random or sequential number generators.

The Florida TCPA does not use the term “autodialer.” Instead, it prohibits the use of “automated systems for dialing or selection of phone numbers or the playing of recorded messages” to place calls or send text messages to consumers without prior express written consent. Further complicating matters, the FTSA does not define what an “automated system” is. Nevertheless, the Southern District of Florida held in Turizo v. Subway, that Florida’s legislature need not define every term to clearly express its will.

Turizo also made clear that the FTSA’s “automated system” was not the equivalent of the TCPA’s “autodialer.” As expected, the definition and alleged use of an automated system is now heavily litigated in telemarketing lawsuits brought under the FTSA.

Some of the FTSA’s other differences from the TCPA are more nuanced, including:

• Limiting the number of times a business can call or text a consumer to three per day; and
• Prohibiting calls before 8:00 a.m. and after 8:00 p.m. in the consumer’s time zone. It is important to note that Florida crosses two time zones, Eastern and Central.

The FTSA is not even two years old, yet it has already become a steady source of telemarketing litigation. Its expansive and ambiguous interpretation of what constitutes an automated system has caused significant legal headaches for companies that call and/or text Florida consumers. Businesses should be proactive in ensuring compliance with the FTSA, no matter how it is interpreted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

© Mr. David O. Klein. Klein Moynihan Turco LLP, 450 7th Avenue, New York, NY 10123