Mixed News: Florida and Maryland Telemarketing Developments

In good news for businesses, on May 25, 2023, Governor DeSantis signed HB 761, which significantly limits the Florida Telephone Solicitation Act (FTSA). On the other hand, on May 3, 2023, Maryland Governor Moore signed SB 90 into law, enacting the very restrictive Stop the Spam Calls Act of 2023.

Amendments to Florida Law

In an earlier client alert, we discussed the FTSA, which has been a source of consternation to businesses with its ambiguous autodialer definition, strict consent standards, and private right of action. After almost two years of litigation, the Florida legislature introduced HB 761, since enacted into law, to roll back and clarify some of the law’s provisions.

The revised FTSA includes the following noteworthy revisions:

• The FTSA generally prohibits the use of an autodialer to make unsolicited marketing calls (including texts) unless the caller has the called party’s prior express written consent. The revised law significantly pares back the definition of an autodialer to an automated system that both selects and dials numbers—rather than a system that selects or dials numbers.
• Further narrowing the circumstances under which prior express written consent is required, the amended law now requires such consent only for unsolicited autodialed calls/texts. “Unsolicited” is defined as a call/text made other than (i) in response to an express request of the called party; (ii) primarily in connection with an existing debt or contract; or (iii) to a person with whom the calling company has a prior or existing business relationship.
• FTSA originally required that “prior express written consent” include a signature; however, either a signature or other demonstration of consent now suffices. A demonstration of consent may include, for instance, a consumer’s checking a box or otherwise “responding affirmatively.”
• Before an action for damages for text solicitations can be filed, a potential plaintiff must reply “STOP” to the sender, after which the sender has 15 days to stop sending texts to that number. This revision essentially creates a safe harbor for potential defendants, whereby a plaintiff’s claim is only actionable if the plaintiff received a text more than 15 days after having made a “STOP” request.

The revisions took effect immediately. They apply to any lawsuit filed on or after May 25, 2023. They also apply retroactively to a putative class action not certified on or before May 25, 2023.

Maryland’s Stop the Spam Calls Act

The newly passed Maryland law is set to take effect on January 1, 2024. In contrast to the rollbacks under Florida law, the Maryland law takes an expansive approach, with provisions that may increase compliance obligations and litigation risks for businesses that fall within its scope.

Most notably, the Maryland law will impose strict prior express written consent requirements on the delivery of marketing calls and texts using an automated system for the selection or dialing of numbers, the playing of a recorded or artificial voice message, or the transmission of a prerecorded voicemail. The consent requirements are similar to those under the FTSA (as well as under Oklahoma law). Specifically, consent, which must be written, must contain (i) the signature of the party to be called or texted; (ii) an authorization to deliver an automated or prerecorded solicitation by call, text, or voicemail to a specified number; and (iii) the disclosure that the called party is not required to agree to receive calls or texts or to agree as a condition of any purchase.

It is notable that the term “automated system” is broad and captures a system used for the selection or dialing of numbers, going beyond the recent amendments to Florida law. Ambiguity around the scope of this phrase could lead to arguments by plaintiffs’ attorneys that a dialing or texting platform qualifies as an “automated system” even if it would not be considered an “autodialer” under the TCPA, possibly leading to an increase in litigation over the scope of the Maryland law, as we have seen in Florida over the past couple of years.

Looking Forward

We may see an increase in litigation to determine the precise contours of both of these pieces of legislation, particularly in the case of the FTSA, which has been enforced aggressively by private plaintiffs. Any such developments should be reviewed carefully by any organization that makes telemarketing calls or sends marketing text messages.