On May 25, 2023 Gov. Ron DeSantis signed into law an amendment (Amendment) to the Florida Telephone Solicitation Act (FTSA), clarifying ambiguities and corralling what has been a runaway gust of telemarketing litigation since the passage of the FTSA almost two years ago. Under the FTSA, an individual could bring suit against a telemarketer for using an automated telephone dialing system (ATDS) that simply selected phone numbers or dialed telephone numbers to place calls or send messages without prior consent. In other words, even if the caller dialed the phone number manually, the call would still be subject to the FTSA if the number was automatically selected using software. This Amendment clarifies that suit can be brought only if the ATDS both selects and dials the phone number. While still not specifically defining what constitutes an ATDS, this two-part test should stem the flow of FTSA litigation by greatly narrowing the present standard.

In addition to clarifying the ATDS standard, the amendment also expands the acts that qualify as consent for contact and requires the violation of affirmative stoppage requests before suit can be filed in response to text message solicitation. While previously consent to receive calls and messages was limited to express signatures, it now includes acts that “demonstrate” consent, such as checking boxes indicating consent or responding affirmatively to text messages, advertising campaigns, or email solicitations. Further, before an action for damages can be brought for alleged violations stemming from text message solicitations, the called party must now notify the solicitor that they do not wish to receive messages by replying “STOP,” after which the solicitor has 15 days to cease sending further messages other than to confirm receipt of the opt-out notice. The Amendment specifically requires the keyword “STOP,” and does not prescribe other keywords to satisfy this condition precedent to commencing an action for damages. Both changes should decrease the pressure on marketers navigating consent requirements and stoppage requests.

The Amendment also clarifies that the caller must obtain the prior express written consent of the called party, not the intended caller or signatory.

Lastly, the Amendment applies retroactively, applying to any suit filed on or after the effective date of the Amendment and to any class action not certified on or before the effective date. Such changes demonstrate the state’s intent to clarify the ambiguities previously present in the law and those that the courts failed to resolve. While certified class actions will be allowed to proceed, all future suits will be restricted by the Amendment.

Though these changes should help curtail state telemarketing litigation in Florida, marketers must take care to maintain consistent compliance with intersecting federal telemarketing laws, including the Telemarketing Sales Rule (TSR) and the Telemarketing Consumer Protection Act (TCPA). While Florida has quieted its regulatory winds, quickly adapting to the changes and maintaining clear compliance across intersecting laws will safely secure marketers should the winds pick up again. We will be monitoring these developments as well as the activity in other states, where near carbon copies of the original FTSA have been enacted (such as Oklahoma), for amendments to their laws as well.