TCPAWorld has been extensively covering developments with the Florida Telephone Solicitation Act (“FTSA”), or the mini-TCPA for calls in the Sunshine State. As a quick recap, two separate bills in the Florida Legislature have proposed a slew of amendments to the FTSA: the Florida House Bill, HB 1095, and the Florida Senate Bill, SB 1564. The Baron told you all about the status of these two bills. Below, we break down some of the key proposed amendments, and what they might mean for you.
Note that none of these amendments have gone into effect yet—and they may never go into effect, depending on the votes on each bill go, so the FTSA has not changed yet. Some provisions between the two bills also conflict, so the Florida Legislature will ultimately be required to harmonize the conflicting provisions. The information below is based on the current drafts of the two separate bills, which have not yet been enacted.
Amendments Proposed in Both Bills
Warring Autodialer Definitions: This is a big one. Both the House and Senate Bills would amend the definition of an “automated system” under the FTSA. Under the Senate Bill, the FTSA’s definition of “autodialer” would be changed from “automated system for the selection or dialing of telephone numbers” to “automated system for the selection and dialing of telephone numbers” (emphasis added). This change could mean that click-to-dial and human selection-based systems could be used to make calls to Florida.
However, the House Bill is proposing an entirely new definition of an automated system that’s significantly broader, as the Czar covered previously. The proposed definition of an “automated system” is:
“a computerized, mechanical, or other technological system or device that creates a telephone number, stores or selects any telephone number from any database or list, and then causes that telephone number to be called. The term includes any system which the caller or any other person operates by click-to-call or which the caller or any other person selects telephone numbers from a list to call. The term does not include a user selecting telephone numbers from a contact list or telephone log on a cellular, handheld, or landline device.”
Right now, these definitions seem to be in pretty direct conflict. If both the House and Senate Bills pass, the Florida Legislature will have its work cut out for it to figure out what an “automated system” actually is.
Retroactivity: Both the House and Senate Bills clarify that the proposed amendments would apply retroactively to July 1, 2021 or any proceeding commenced after July 1, 2021. Depending on the definition of an “automated system” that’s adopted, this is poised to have a huge impact on current FTSA litigation.
120 Days to “Return” an Inquiry, and Three-Call Limit to Do So: Both the House and Senate Bills propose the creation of a 120-day period after a called party makes an express request to be contacted. In other words, an “unsolicited telephonic sales call” doesn’t include a call made within those 120 days after the express request is made. There’s currently no limitation on the timeframe to return an express request, so this would significantly shorten a caller’s time period to respond to an express request.
Both bills also clarify that subsection 8 of the FTSA “does not prohibit the use of an automated system for the selection and dialing of telephone numbers with live messages or text messages if the call or message is made solely in response to an inquiry initiated by the called party.” However, each bill specifies that only three such calls or messages may be sent in response to the inquiry—which would be another new limitation.
Amendments Proposed in House Bill Only
Prior Express Written Consent Language: The House Bill proposes the following language that would presumptively qualify as prior express written consent:
“By signing below, you authorize [NAME] to place a telephonic sales call to you at [TELEPHONE NUMBER] by way of telephone calls, text messages, or voicemail transmissions using an automated system for the selection and/or dialing of telephone numbers or the playing of a recorded message when a connection is completed to your telephone number. YOU ARE NOT REQUIRED TO PROVIDE SUCH AUTHORIZATION AS A CONDITION OF PURCHASING ANY PROPERTY, GOODS, OR SERVICES.”
Having language that automatically reads as prior express written consent would be a game-changer for collecting consent under the FTSA – sure would be handy if the TCPA had something similar!
New Definitions of “Selection” and “Telephonic Sales Call”: “Selection” isn’t currently defined in the FTSA. The House Bill proposes to change that, and would define “selection” as “to store or randomly produce telephone numbers to be called and to create a list of called parties without manual intervention.” The House Bill would also expand the definition of “telephonic sales call” to also apply to calls, text messages, or voicemails made for the purpose of “soliciting a sale or acquisition of any consumer goods or services. . .” The current definition only applies to calls or messages made for the purpose of “soliciting a sale of any consumer goods or services. . .” Since there isn’t a definition of “acquisition” proposed, this could potentially open a whole new can of worms as to what, exactly, a call to solicit acquisition of consumer goods or services is.
New Prohibitions on Telephone Solicitors: The House Bill proposes two new prohibitions on the actions of “telephone solicitors.” The first relates to “automated systems,” and provides that “[a] telephone solicitor may not cause any unsolicited telephonic sales call to be initiated by use of any automated system.” If this passes, it will be hugely impacted by which version of the “automated systems” definition the Florida Legislature chooses to implement.
The House Bill also proposes that “[a] telephone solicitor may not cause any telephonic sales call to be initiated by any person other than the caller.” This is another game-changer that could mean the end of call centers in Florida.
When Is All Of This Happening?
While all these changes may seem intimidating, the current state of the FTSA hasn’t changed. None of these amendments have gone into effect yet (and none of them are guaranteed to go into effect, period). But that could change soon, as the Florida Senate is poised to act on SB 1564 as early as this week. The House Bill is currently with the Florida House Commerce Committee, and is on the Committee’s agenda for a meeting tomorrow morning. If anything does change – you’ll read about it first on TCPAWorld.
© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 53