Legislature Poised to Overhaul Florida’s mini-TCPA

The Florida Legislature is moving quickly to pass significant remedial amendments to the Florida Telephone Solicitation Act (“FTSA,” Fla. Stat. § 501.059) before the end of the legislative session this Friday. Should the proposed amendments succeed, they would restrict the scope and substance of the statute in several important ways.

First, the amendments would narrow the categories of equipment that are covered by the statute. Whereas the current autodialing restrictions apply to “automated system[s] for the selection or dialing of telephone numbers,” the amended autodialing restrictions would apply only to “automated system[s] for the selection and dialing of telephone numbers” (emphasis added). Note, however, that even the amended version would restrict “the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”

Second, the amendments would expand the definition of “signature” to confirm that it includes acts such as “checking a box” and “responding affirmatively to receiving text messages.” Although the existing definition extends to digital signatures “to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law,” the amendment would eliminate arguments about the validity of consent captured through these increasingly common processes.

Third, with respect to “text message solicitations,” the amendments would create a 15-day notice-and-cure period before a plaintiff can file suit, allowing defendants to avoid litigation by removing plaintiffs from their texting lists.

Notably, the amendments would apply retroactively to any pending FTSA action that is styled as a class action but has not been certified as such before the effective date of the amendments. That is welcome news to the thousands of callers that have been sued in (or received threats of) class actions, though the retroactivity of the amendments will almost certainly be tested in court.

The House version of the amendments (HB 761) passed on April 26, 2023, while the Senate version (SB 1308) appears set for a vote on May 2, 2023. As the end of this legislative session (May 5, 2023) is rapidly approaching, there is limited time to pass these changes into law.

We will continue to keep you posted on this and all the latest updates surrounding the FTSA.

About the Author: Emanuel L. McMiller

Emanuel (Manny) McMiller helps companies resolve and manage disputes in litigation, partnering with clients to achieve their goals and avoid disruption.

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

About the Author: Marsha J. Indych

Marsha Indych handles complex commercial litigation and arbitration matters in jurisdictions throughout the United States, focusing on consumer class actions and domestic and international business disputes. She represents clients from a broad array of industries, including the health care, financial services, media, technology and energy industries. Marsha defends leading businesses against consumer protection-based claims. She has successfully defended dozens of Telephone Consumer Protection Act (TCPA) actions, including class actions, individual actions, arbitrations and prelitigation disputes in jurisdictions across the country. Her practice includes helping clients navigate evolving — and sometimes conflicting — standards for TCPA compliance. She regularly contributes to the TCPA Blog, providing analysis about recent developments regarding the statute.