At a Glance
- Florida’s latest legislative session will close without action on two companion bills that would have limited the scope of the Florida Telephone Solicitation Act (FTSA).
- The bills were introduced after courts disagreed about whether the FTSA applies to solicitations by a nonprofit university.
- The bills would have amended the FTSA’s definitions to expressly exclude solicitations that nonprofits make for religious, charitable, political, or educational purposes.
- Although the same or similar bills may be introduced in the next legislative session, nonprofits should be aware of the uncertainty and proceed accordingly in the meantime.
The FTSA
The FTSA (Fla. Stat. § 501.059), often referred to as Florida’s mini-TCPA, regulates how and when solicitors can call and text consumers. Most notably for present purposes, it prohibits telephonic solicitations involving an automated system that selects and dials telephone numbers or plays recorded messages without the recipient’s prior express written consent. See Fla. Stat. § 501.059(8)(a). But it also includes other provisions, for example: (1) requiring that sales calls transmit the caller’s number to a recipient’s caller ID service; (2) requiring any contract formed pursuant to a telephonic sales call to be in writing, to be signed by the consumer, and to include certain specified provisions; (3) prohibiting callers from altering their voices or concealing their identities; and (4) establishing a “no sales solicitation calls” listing to be managed by the state.
Like the TCPA, the FTSA provides for statutory damages of at least $500, which can be trebled if the violation was willful or knowing. See Fla. Stat. § 501.059(10). Unlike the TCPA, however, the FTSA provides that a prevailing party may recover their reasonable attorney fees and costs. See id. § 501.059(11).
The FTSA’s Application to Nonprofit Solicitations
In its current form, the FTSA defines a “telephonic sales call” as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services….” Fla. Stat. § 501.059(1)(j) (emphasis added). It then defines “consumer goods or services” in relevant part as either “real property” or “personal property that is normally used for personal, family, or household purposes,” including but not limited to “any services related to such property.” Id. § 501.059(1)(c) (emphasis added).
But the FTSA does not define “personal property,” leaving room for enterprising plaintiffs to argue that it applies to solicitations by nonprofits, including communications they make for religious, charitable, political or educational purposes.
This debate is exemplified by two cases arising from calls by Everglades College, Inc. d/b/a Keiser University (Keiser). In those cases, Keiser allegedly called and texted potential students about registering for courses, even though they had not consented and/or had tried to opt out of such communications. Keiser argued that the FTSA did not apply because college degrees and courses are not “consumer goods or services” because (among other reasons) they are not “personal property” that can be owned or conveyed, and in any event because they are not used “for personal, family, or household purposes.” Keiser also argued that the Florida Legislature had always intended to treat communications related to education differently, as evidenced by the Legislature’s exemption of solicitations for educational purposes in the Florida Telemarketing Act (Fla. Stat. § 501.601 et seq.). See Fla. Stat. § 501.604(2).
The Southern District of Florida Held that the FTSA Applies
District Judge Beth Bloom of the Southern District of Florida rejected Keiser’s arguments. Leigue v. Everglades Coll., Inc., 2022 WL 11770137, at *2-4 (S.D. Fla. Oct. 20, 2022). She held that (1) the FTSA does not define “personal property”; (2) courts cannot “add words” that are “conspicuously absent” from a statutory definition; and (3) the FTSA should be construed broadly because it is a consumer protection statute. Id. She also rebuffed Keiser’s attempt to compare the FTSA to the Telemarketing Act, finding that the Telemarketing Act’s definition of “consumer goods or services” (see Fla. Stat. § 501.603(3)) was the same as the FTSA’s definition. She reasoned that, if the Legislature had intended to exclude communications related to classes or educational services from the FTSA, it could have done so explicitly. Id.
The Middle District of Florida Held that the FTSA Does Not Apply
Magistrate Judge Anthony Porcelli of the Middle District of Florida recommended rejecting Keiser’s arguments as well. Moffet v. Everglades Coll., Inc., 2024 WL 1657195, at *4 (M.D. Fla. Mar. 4, 2024). But District Judge Kathryn Mizelle rejected that recommendation, explaining that, “[a]bsent a legislatively supplied definition, Florida law gives terms in a statute their plain and ordinary meaning at the time of the statute’s enactment.” Moffet, 2024 WL 3342265, at *3-5 (M.D. Fla. June 5, 2024). Relying on dictionary definitions, she found that education is not “personal property” and that, “although educational services are definitionally ‘services,’ they are not services ‘related to … property.’” Id. While acknowledging that the FTSA is a consumer protection statute, she held that she could not extend its reach beyond its “plain and ordinary meaning” at the time of its enactment. Id. She also found that comparing the Telemarketing Act to the FTSA was an “apples-to-oranges” endeavor, as the definitions of “consumer goods or services” in the statutes were slightly different, with the Telemarketing Act’s definition being broader in reach. Id; see also Fla. Stat. § 501.603(3) (which includes the phrase “or any property of any nature which is solicited for the purpose of providing a profit or investment opportunity”). Therefore, she reasoned that the Florida Legislature may have chosen to enumerate exceptions to the Telemarketing Act given its more expansive reach than the FTSA.
Florida Legislature Fails to Pass Remedial Legislation
In light of the different outcomes in Leigue and Moffet, two companion bills (HB 375 / SB 454) were introduced earlier this year to clarify that the FTSA does not apply to certain solicitations by tax-exempt nonprofits for religious, charitable, political, or educational purposes. The bills would have:
- Revised the definition of “telephone solicitor” to exclude “a tax-exempt nonprofit organization or a person or an organization acting on its behalf.”
- Revised the definition of “telephonic sales call” to exclude “phone calls, text messages, or voicemail transmissions made by a tax-exempt nonprofit organization for a religious, charitable, political, or educational purpose.”
See HB 375 and SB 454; see also Fla. Stat. § 501.059(1)(i) (defining “telephone solicitor” as a natural person, firm, organization, partnership, association, or corporation…who makes or causes to be made a telephonic sales call….”); Fla. Stat. § 501.059(1)(j) (defining “telephonic sales call” as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services….”). The bills’ revised definition of “telephonic sales call” would also have expressly aligned the FTSA with the Telemarketing Act. See Fla. Stat. § 501.604(2) (“The provisions of this part … do not apply to: [a] person soliciting for religious, charitable, political, or educational purposes.”). The bills would not, however, have removed the FTSA’s prohibition on soliciting “charitable contributions” when the recipient of the solicitation has previously indicated that they do not wish to receive the communication. See Fla. Stat. § 501.059(5)(b). Unfortunately, the Legislature failed to act on them before May 2, 2025 (the last day of the 60-day legislative session). Although the legislative session was extended until June 6, 2025 due to the Legislature’s failure to pass a budget, the companion bills will not be considered during that time period.
Current Landscape and Future Developments
Although the dismissal in Moffet is the more recent and better reasoned ruling, the Legislature’s failure to enact remedial legislation means that the FTSA’s applicability to communications by nonprofits for religious, charitable, political, or educational purposes remains unsettled. Until the statute is amended, nonprofits should be aware of the split in authority and proceed with caution.
Our team will continue to monitor developments of the law in this area.
