I am a long-suffering Arsenal Football Club supporter. Every August, I put on the team's new kit, foolishly believing that this will be the year that my beloved Gunners top the English Premier League. And, every year, sometime around November or December, I resign myself to knowing that it is not. But, this season, Arsenal have been neck and neck with Manchester City, spending most of the season at the top of the table. And, after yesterday's 3-1 win over London rivals Chelsea, Arsenal lead City by two points in the race for the league championship. But I take Arsenal's form with about a million grains of salt: "you can never be unhappy unless you are happy in the first place."
So, being pessimistic by nature, I didn't think too much of it when bills were introduced in both the Florida House and Senate in February 2023 aimed at amending the Florida Telephone Solicitation Act (FTSA). Bills were introduced in early 2022 too. But those went nowhere. I watched the 2023 proposed FTSA amendments work their way through each congressional chamber. But I refused to believe. Even after the House bill was voted out favorably at the end of April, I didn't put too much stock in such fact (although the House was the stumbling block where the proposed 2022 amendments previously failed). But, yesterday, the FTSA amendments passed fully of the state legislature. They will now be sent to Governor Ron DeSantis for his signature. Do you believe in miracles? Yes. Well, maybe. I'll believe it when I see his signature on the legislation.
The amendments themselves are big and welcome news, as they should do much to help stem the flow of the hundreds of FTSA class actions that have plagued the Florida state and federal court systems—my current tracker stands at 431 FTSA cases filed since July 1, 2021 when the statute was amended to allow for a private cause of action—but I know that number is understated. Many businesses have been forced to pay large bounties to the plaintiffs' bar in order to avoid the asymmetric expenses of class litigation and the risk of bankrupting, draconian statutory damages under the FTSA. Specifically, the amended FTSA most notably does the following:
- Revises what constitutes an autodialer. When the predecessor autodialer statute to the FTSA (former Fla. Stat. § 365.165) was enacted in 1978, it regulated, in part, the use of an "automatic system for selection and dialing of telephone numbers . . ." In the early 1980s, Section 365.165 was amended to make the autodialer provision disjunctive, i.e., the use of an "automatic system for the selection or dialing of telephone numbers . . ." In 1990, Section 365.165 was combined with other statutes into the FTSA, and that autodialer wording has remained since. Yet as State Senator Clay Yarborough, the primary sponsor of the Senate bill to amend the FTSA, correctly pointed out during the April 24, 2023 Senate Committee on Rules hearing on the amendments, nowadays "virtually every communication uses an automated machine, for example, our smartphones . . . Well-meaning businesses are being sued for things that we did not mean to be within the scope of the law [the FTSA]." In other words, the FTSA's (former) prohibition on the use of an "automatic system for the selection or dialing of telephone numbers" was too broad and covered off-the-shelf cell phones. Thus, the 2023 amendments change what constitutes an autodialer to be an "automatic system for selection and dialing of telephone numbers . . ." In other words, to be an autodialer, a calling or text messaging platform must both automatically select numbers and dial them, no differently than technology did in the late 1970s and early-to-mid-1980s.
- Limits the prohibition on the use of autodialers to
"unsolicited" telemarketing calls and marketing text
messages. The amended FTSA's autodialer provision
(Fla. Stat. § 501.059(8)(a)) now applies only to
telephonic sales calls," including text messages, whereas the
former provision broadly applied to "telephonic sales
calls" generally. The amended subsection now reads:
A person may not make or knowingly allow to be made an unsolicited telephonic sales call if such call involves an automated system for the selection and dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.
This is a significant revision because the definition of "unsolicited telephonic sales calls" expressly excludes, among other things, telemarketing calls and marketing text messages made or sent "[i]n response to an express request of the person called" or "[t]o a person with whom the telephone solicitor has a prior or existing business relationship." Most responsible companies only call or text consumers who have requested such communications, such as by submitting a lead form, or with whom the companies have established business relationships, such as current and past customers. Those types of solicited telecommunications are no longer generally subject to the FTSA's autodialer provision.
- Creates an easy and commonsense self-help requirement and safe harbor before a consumer may file suit based on text messages. It is amazing how many plaintiffs file putative class actions based on their receipt of a single allegedly unsolicited, autodialed marketing text message (standing issues aside). It's even more surprising how few consumers who allegedly detest receiving such messages don't simply respond "STOP" to stop receiving them; rather, these consumers let the text messages continue, sometimes for months or years, and, then, file suit. Under the amended FTSA, no more. Now, before an FTSA text messaging lawsuit seeking damages may be filed, the would-be plaintiff affirmatively "must notify the telephone solicitor that the called party does not wish to receive text messages from the telephone solicitor by replying 'STOP' to the number from which the called party received text messages from the telephone solicitor." What's more is that the FTSA now provides a fifteen-day grace period during which the telemarketer must stop sending text messages to the consumer after receiving a "STOP" request (except that the telemarketer may send a single text message to confirm receipt of the request). In short, before an FTSA text messaging suit may be brought, a consumer must (1) reply "STOP" to the telemarketer (i.e., request that text messages stop) and (2) the telemarketer must continue to send text messages after fifteen days from the "STOP" request. These pre-suit requirements make complete sense and should help stave off many of the "gotcha" FTSA suits based on, for example, reassigned numbers or purported technical violations.
- Applies the amendments retroactively. The amended FTSA contains an explicit statement of retroactivity: "The amendments made by this act apply to any suit filed on or after the effective date of this act and to any putative class action not certified on or before the effective date of this act." In other words, the amendments will apply to any yet-to-be-filed case as well as to any pending putative class action that has not yet been certified once the amendments go into effect. Already, a number of plaintiffs' class action attorneys have stated their intentions to challenge the retroactivity provision on grounds that it is unconstitutional. However, this type of fight has been had in the context of other statutes that were amended while uncertified class actions were pending, and the courts ruled favorably for the defendants, finding no violations of Article III (separation of powers), or constitutional takings or due process clauses. Nonetheless, this issue likely will be the next FTSA fight.
Now we wait to see if Governor DeSantis signs the bill amending the FTSA into law. While not a guarantee by any means, based on Governor DeSantis's track records of bill signings versus vetoes, the odds are good. Let's just hope that Arsenal's chances of winning the Premier League are equally favorable. This may be the year!
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