Uptick in Florida Telephone Solicitation Act Litigation and Ways to Mitigate Risk

This is “A MoFo Privacy Minute,” where we answer the questions that our clients are asking us in sixty seconds or less.

Question: There has been an uptick in Florida Telephone Solicitation Act litigation related to Caller ID rules. What is the Florida Telephone Solicitation Act, and how can I mitigate my business’ risk?

Answer: The Florida Telephone Solicitation Act (FTSA, Fla. Stat. § 501.059) is Florida’s state telemarketing law analogous to the federal Telephone Consumer Protection Act (TCPA) and is sometimes referred to as a “mini-TCPA.” Like the TCPA, the FTSA requires, among other obligations, consent for auto-dialed calls and texts, and provides a private right of action to Florida residents who receive unwanted messages. Under the FTSA, claimants can obtain either $500 per violation or actual damages, whichever is greater, along with injunctive relief.[1] Damages figures may be tripled for willful or knowing violations.[2]

The FTSA’s private right of action has made the law an area of concern for businesses marketing to consumers through phone calls or text messages, exposing them to a flood of class action litigation. Luckily for those businesses, in 2023, the Florida legislature passed, and Florida’s governor signed into law, various business-friendly FTSA amendments.[3] These amendments clarified the statute’s ambiguous provisions and provided much-needed direction to businesses seeking to ensure compliance. Amendments included:

• Refining the definition of “auto-dialer” by specifying that “automated” calls, texts, or voice messages are those sent using a system that both selects and dials numbers.[4]
• Holding businesses liable only for unsolicited calls or messages, thus exempting those made (1) in response to a consumer’s request; (2) in connection with an existing contract, payment, or debt; (3) to a consumer with whom a business has an existing relationship; or (4) by a newspaper publisher in connection with their business.[5]
• Authorizing more ways to obtain a consumer’s consent to receive communications beyond a written signature, like checking a box or affirmatively responding to a text message, advertising campaign, or email solicitation.[6]
• Creating a 15-day safe harbor period for ceasing to contact consumers who have provided notice they do not wish to receive further communications, before a suit can be brought.[7]

While these amendments have decreased the flow of plaintiffs’ claims under the FTSA, industrious plaintiffs’ attorneys have begun to allege violations of a previously overlooked part of the statute: the caller ID or two-way communications provision.[8] This provision requires businesses to ensure that the consumers they are messaging can view the business’s number and call or message them back.[9] Plaintiffs are bringing claims against businesses for failing to follow these rules, either by calling or texting consumers from phone numbers incapable of two-way communication, or, if calling from such numbers, by failing to provide consumers with alternative numbers through which the business can be contacted.

Significantly, the two-way communication provision raises some uncertainty on these issues: (1) whether ceasing the solicitation calls or messages using the number incapable of two-communication remedies the FTSA violation, and (2) whether liability will attach for violating the two-way communication requirement even for consented-to communications.[10]

While these cases play out in Florida courts, and we wait to see if plaintiffs have success with this theory of liability, businesses can implement certain measures to mitigate FTSA risk if they communicate with consumers using numbers incapable of two-way communication (such as short codes). Specifically, businesses may:

1. Update their SMS consent language to include their customer support number (e.g., “Contact us at _____________ with questions.”);
2. Identify their business name and include a customer service number in each marketing message; or
3. Include their customer service number in response to any “HELP/STOP” responses.

Businesses should keep an eye out for developments in both the FTSA and other state and federal telemarketing laws, given the focus on telemarketing activities by regulators and plaintiffs’ attorneys alike.

[1] Fla. Stat. § 501.059(10)(a) and (10)(b).

[2] Fla. Stat. § 501.059(10)(b).

[3] Fla. H.B. 761 (2023).

[4] Fla. H.B. 761 (2023) at 1.

[5] Id. at 3; Fla. Stat. § 501.059(1)(k)(4).

[6] Fla. H.B. 761 (2023) at 2–3; Fla. Stat. § 501.059(1)(h)(2).

[7] Fla. H.B. 761 (2023) at 3–4.

[8] See, e.g., Porcelli v. Oscar De La Renta, LLC, No. 2024CA008336 (Fla. Cir. Ct. Sept. 2, 2024), Compl. ¶¶ 1–5.

[9] Fla. Stat. § 501.059(8)(b).

[10] Fla. Stat. § 501.059(8)(b).