The Florida Telephone Solicitation Act (FTSA), a key piece of consumer protection legislation, is on the verge of significant changes that could potentially lead to a variety of consumer protection issues. House Bill 761, also known as CS/CS/SB 1310 or “the Amendment”, passed by the Florida Legislature on May 2, 2023, is currently awaiting the signature of Florida Governor Ron DeSantis. If signed into law, it could considerably lessen the extent of liability under the FTSA, possibly leading to increased potential for violations of consumer rights.
Consumer Implications of Changes
The Amendment proposes to critically limit the private cause of action related to making telephonic sales calls, text messages, and voice messages using automated technology. The proposed modifications could potentially reduce the legal recourse consumers have against unsolicited calls, and even broaden the types of signatures that could be used as evidence of a consumer’s prior express written consent to receive such communications. In addition, the Amendment plans to introduce a longer safe harbor period for telephone solicitors to remove consumers from their call and text lists. These legislative changes, although aimed at reducing the influx of class action lawsuits following the 2021 amendments to the FTSA, could potentially increase the risk of consumer exploitation by unscrupulous solicitors.
Proposed Changes and Potential Consumer Impact
If Florida’s governor signs the bill, the Amendment could have a significant effect on consumer protections provided by the FTSA. The legislation might make it harder for consumers to protect themselves from unwanted calls and messages since it would limit their legal options and introduce more ways for solicitors to claim prior consent. This could also make it more difficult to hold violators accountable. The proposed safe harbor period could also allow solicitors additional time to make unwanted contacts, increasing the potential volume of illegal or unsolicited communications consumers receive.
While the legislation’s goal of reducing frivolous lawsuits is understandable, the changes may come at the cost of weakening consumer safeguards. Overall, the impact of the Amendment is unclear, and further review of the specific changes is needed to fully understand how consumers may be affected.
A key change proposed by the Amendment pertains to the use of automated systems for the selection and dialing of telephone numbers. The current FTSA, effective since July 1, 2021, allows consumers to take legal action if a “person” made or knowingly allowed “a telephonic sales call to be made if such call involved an automated system for the selection or 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”.
FTSA Amendment Revisions
The Amendment aims to change this wording to “an automated system for the selection and dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.” This implies that a violation of the FTSA would only occur where the automated system is used to both select and dial telephone numbers, thus potentially narrowing consumer protections against intrusive calls.
Supreme Court Ruling’s Effect on FTSA
The original 2021 amendments to the FTSA were enacted following the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid, which narrowed the scope of protections under the federal Telephone Consumer Protection Act (TCPA). The TCPA created a civil cause of action where a caller made certain telephone communications “using” an “automatic telephone dialing system” (ATDS) without specified consent of the called party. The U.S. Supreme Court ruled that to qualify as an ATDS, the device must “have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.”
The FTSA’s original, broader language had ignited a surge of class action litigation in Florida, as many written consumer agreements did not explicitly allow the use of such technology. The proposed Amendment, while attempting to curtail this litigation, could potentially expose consumers to more unwanted calls by narrowing the definition of an ATDS.
Finally, it is important to note that the Amendment is still awaiting Governor DeSantis’s approval, and the exact timeline for its implementation remains uncertain. While the changes aim to reduce litigation, they also raise substantial concerns about potential erosion of consumer rights and protections in the realm of telecommunication.
Please note that this article provides information only and is not intended to provide legal advice. If you have specific questions about your individual circumstances, it is recommended that you seek legal assistance.
The Finn Law Group, based in Florida, is a legal service provider that covers various fields. Attorneys J. Andrew Meyer and Michael D. Finn lead the team with a commitment to serving and protecting clients’ rights and interests. They specialize in consumer protection, timeshare law, telemarketing, and debt collection practices. For more information about their services, visit their website or call 727-214-0700.
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