Florida Bar Journal

Putting Pandora Back in the Box: The Florida Telephone Solicitation Act

Companies who do not adhere to consumer protection laws that implicate their marketing techniques and strategies, such as the Florida Telephone Solicitation Act and its federal counterpart the Telephone Consumer Protection Act, can face exposure from individual and class action lawsuits. Conversely, companies that stay abreast of the fluid legal landscape can ensure that they adopt internal policies and procedures to protect against such liability.

The Florida Telephone Solicitation Act (FTSA) was enacted in 1987 under F.S. §501.509, a few years prior to the enactment of the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227 in 1991. The FTSA and TCPA are substantively similar, and caselaw interpreting the TCPA is often applied to interpret the FTSA. Indeed, the TCPA has been referred to as the “federal analog to the FTSA.”^[1]

In 2021, the Florida Legislature amended the FTSA to provide, for the first time, a private cause of action for citizens to sue for receipt of unwanted telephone calls and text messages sent in violation of the statute. The 2021 amendments permitted a successful plaintiff to obtain injunctive relief and recover statutory damages for each violation of the FTSA, while also permitting a plaintiff to seek treble damages for willful and knowing violations. The $500-per-violation statutory damages, the potential for treble damages, and the availability of attorneys’ fees and costs created an attractive — and potentially lucrative — niche practice for plaintiffs’ attorneys. The 2021 amendments were quickly followed by a flurry of individual and class action lawsuits filed against companies using text messages to market and promote their products and services, seeking to exploit the broad language of this newly-created cause of action. In an attempt to curb this rising litigation, in 2023 the Florida Legislature further amended the FTSA to clarify the boundaries of permissible claims. This article briefly discusses the history of the FTSA, the language and resulting impact of the 2023 amendments, and recent developments in the caselaw addressing FTSA claims to help lawyers develop appropriate policies and procedures to protect their clients.

History of the Florida Telephone Solicitation Act

Historically, the FTSA appeared benign following its enactment in 1987.^[2] The FTSA prohibits “telephone solicitors” from placing “telephonic sales calls” to residential or mobile telephone numbers, and to telephonic paging devices that were included on no-call lists maintained by the Florida Department of Agricultural and Consumer Services (FDACS).^[3] The FTSA also banned telephonic sales calls to consumers or businesses who had previously asked to no longer be called or otherwise opted out of such communications.^[4] The law prohibited persons from knowingly allowing a telephonic sales call to be made using an “automated system for the selection or dialing of telephone numbers,” but did not define that term. Prior to 2021, violations of the FTSA could only be enforced by administrative and regulatory action from FDACS via civil penalties or administrative fines.^[5]

But in 2021, the Florida Legislature significantly altered the landscape of FTSA enforcement, with the related goals of addressing consumers’ concerns of being inundated with unwanted solicitation and bringing Florida law in line with the TCPA’s statutory private cause of action.^[6] In addition, the 2021 amendments addressed a U.S. Supreme Court case issued months earlier that clarified what constituted an “automatic telephone dialing system” under the TCPA.^[7]

The 2021 amendments created a roadmap for an aggrieved party to establish — or at least claim — liability for violations under the FTSA. First, even despite the U.S. Supreme Court’s decision, the Florida Legislature declined to add a definition of an “automated system for the selection or dialing of telephone numbers,” thereby leaving in place a broad definition open to interpretation.^[8] Second, §501.059(8)(a) was amended to add a requirement that a caller first obtain a person’s “prior express written consent” to place calls using “an automated system for the selection or dialing of phone numbers or the playing of a recorded message[.]” To comply with the statute (and presumably avoid liability), the “prior express written consent” obtained from the consumer must include: 1) the signature of the called party; 2) clear authorization to receipt of calls or texts from the calling party using an automated system; 3) the party’s telephone number; and 4) a disclosure that the agreement authorizes the calling party to place sales calls, but that signing of the agreement is not a condition to conducting business with the calling party.^[9]

Most importantly, the revised law created a private right of action authorizing a claimant to sue for injunctive relief and recover the greater of $500 per violation in statutory damages, or actual damages.^[10] It also permitted trial courts to triple a plaintiff’s recovery for willful and knowing violations of the law, and granted prevailing parties the ability to recover attorneys’ fees and costs.^[11] Following the effective date of July 1, 2021, hundreds of new individual and class action lawsuits were filed against businesses using phone calls and text messages to advertise and market their products and services, or just to simply connect with their customers.

The 2023 Florida Legislature Takes Action

It did not take long for the Florida Legislature to address the notable increase in litigation and take steps to rein it in. On May 25, 2023, Gov. Ron DeSantis signed into law H.B. 761, which further amended the FTSA by providing increased guardrails to a private cause of action.

For one, the 2023 amendments expanded the definition of a telephonic sales call to include solicitations made via call, text message, or voicemail using an automated system, bringing the text of the statute in line with the caselaw. However, the amendments also added, “An act that demonstrates consent” to its definition of “signature,” permitting a party to check a box on an electronic notice indicating consent to receive text messages or emails, rather than a written signature. This bolstered the ability of a calling party to demonstrate the called party’s consent using website and social media forms, which were already frequently used in collecting telephone numbers for marketing text messages. Perhaps most importantly, the amendments created a notice requirement as a condition precedent to filing suit. Newly added subsection (10)(c) states that a called party must provide notice that he or she does not wish to receive text messages by texting “STOP” to the calling party, from which the solicitor then has a grace period of 15 days within which to cease marketing texts (and calls, if applicable). Notably, the requirement for the claimant to provide such notice is in addition to the claimant’s existing burden to demonstrate that the calls or texts were unsolicited and placed without prior written consent.^[12]

Finally, the Florida Legislature indicated that the 2023 amendments to the FTSA apply prospectively to individual lawsuits, but apply retroactively to putative class actions not yet certified as of the effective date of May 25, 2023.^[13] The constitutionality of this retroactive application has already been raised and will likely continue to be challenged;^[14] but at least one federal court has dismissed a constitutionality argument, noting that a plaintiff “possesses no vested and inviolable right to represent a class” and “proposed class members hold no vested and inviolable right, free from lawfully imposed requirements, to coalesce and litigate as a class.”^[15] Even so, the application of this provision affects a narrow category of class action cases 1) that were filed prior to May 25, 2023, and 2) whose classes had not yet been certified by May 25, 2023.

A Shift in the Rule on Standing — Drazen v. Pinto

The landscape of FTSA litigation was further altered by a recent decision of the U.S. 11th Circuit Court of Appeals. Shortly after the 2023 amendments became effective, the 11th Circuit issued an opinion on rehearing en banc in Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023), on July 24, 2023. Prior to Drazen, the rule in the 11th Circuit was that a single text message or handful of text messages, or allegations that such texts drained phone battery, used data, or chirped or buzzed, ^[16] did not constitute a “concrete injury” under the TCPA, leading to dismissals of these suits in both state and federal courts.^[17] The 11th Circuit’s reasoning is applied with equal force to interpretations of the FTSA.^[18]

With its opinion in Drazen, however, the 11th Circuit aligned itself with the interpretation of many other federal circuits around the country that a claimant’s receipt of a single unwanted text message causes a concrete injury sufficient to alleged standing to sue.^[19] So, while the 2023 FTSA amendments attempt to create more boundaries around resulting litigation, Drazen appears to have expanded the ability for plaintiffs to maintain actions for as little as one text message sent, or one phone call placed, in violation of the FTSA — and with it, the ability to pursue damages and attorneys’ fees.^[20]

Contrary to the new standard endorsed by the 11th Circuit in Drazen, a single text message is not sufficient to establish standing to sue for a violation of the FTSA or TCPA under Florida’s standing analysis. In Pet Supermarket, Inc. v. Eldridge, 446 F. Supp. 3d 1063 (S.D. Fla. 2020) — which was decided prior to Drazen — the Third District Court of Appeal rejected the plaintiff’s argument that he had standing to pursue a class action for violation of the TCPA because his receipt of “one text message” was similar to “Florida’s common law harm of intrusion upon seclusion,” holding the allegation failed to establish a concrete injury because it did “not rise to the level of outrageousness required for an invasion of privacy.”^[21]

In the wake of the Drazen opinion, at least one Florida trial court has, nevertheless, still cited Eldridge in ruling that a plaintiff who alleged the receipt of a single text message in violation of the FTSA lacked standing to pursue a private cause of action.^[22] In January 2024, the 11th Circuit Court in Miami-Dade County denied a motion for class certification for lack of standing based on the plaintiff’s failure to allege a concrete injury. In doing so, the court noted that it was bound by the standard established by the Third District in Eldridge, which “remains good law” and, thus, binding Florida state courts.^[23] The court rejected the plaintiff’s arguments that the reasoning in Eldridge was undermined by the Drazen opinion, noting that such matters “are more appropriate to raise to the appellate court.”^[24] Accordingly, the Florida appellate courts may revisit FTSA standing based on the Drazen decision.

Best Practices for Guarding Against Liability Exposure

The private cause of action under the FTSA is still relatively new, and the caselaw interpreting the FTSA continues to develop. The 2023 amendments to the FTSA will likely invite challenges, and time will tell whether the FTSA law will continue to align with TCPA interpretations or if it will diverge and form a separate body of law. In the meantime, businesses that use text messages and other forms of telemarketing to market and promote their products and services should take the time to become familiar with the nuances of the FTSA to ensure compliance and avoid potentially time-consuming and costly litigation.

Companies that use telemarketing and text message marketing to consumers should assess their policies for marketing to Florida consumers and consumers with Florida-based phone numbers in the following ways:

1) Consent: The 2023 amendments created a new method of obtaining “express written consent” through use of a checkbox in addition to use of an electronic or physical signature. The authors recommend companies adopt practices to obtain such consent at the first point of contact or purchase, while including and incorporating the required disclosures in a “Terms and Conditions” or “Terms of Use.” A best practice would include a plainly visible statement that the consumer’s signature indicates the consumer’s consent to receive marketing text messages from the company.

2) Opt-Out Policies: With the new requirement that a consumer first opt out of text marketing before a text can be considered to have violated the FTSA, companies that adopt clear internal procedures for ensuring that such opt-out requests are honored are better protected from potential exposure.

3) Ensure Strict Adherence to Policies: With the Drazen decision by the 11th Circuit, even a single unsolicited text message sent after a consumer has opted out can constitute an injury sufficient to bring costly litigation against a company. Companies can leverage existing risk assessment procedures to implement fail-safes to prohibit contacting Florida consumers without a consent on file, and to ensure full compliance with an opt-out.

Both large companies and small businesses alike face challenges in navigating the legal landscape of consumer protection laws like the TCPA and the FTSA, especially as text message marketing grows in popularity for its reach, effectiveness, and ease of use. Practitioners should guide their clients through the ever-changing patchwork of these consumer protection laws, including the TCPA and the FTSA, helping companies manage the risks associated with using digital and text message marketing methods.

This column is submitted on behalf of the Business Law Section, Manny Farach, chair, and Daniel Etlinger, editor.