As we wind down the year and before I set my out of office for a much needed respite, I thought that I’d give the telemarketing litigation community a bit of a holiday gift—some of the legislative history for the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, and, specifically, the Florida Legislature’s own views of the statute’s applicability to interstate versus intrastate communications. That matters a lot in defending FTSA class actions. But, first, let me air some of my grievances with the FTSA.
Despite being in effect since 1990, the FTSA has only recently gained notoriety due to an amendment in July 2021, which added a private right of action to the statute, allowing consumers to sue for between $500 and $1,500 per telemarketing call or marketing text message that violates the statute. (That sure sounds a lot like the federal Telephone Consumer Protection Act’s (“TCPA”) statutory damages scheme, no?) There is no cap on damages as there is with other Florida statutes, such as the state’s debt collection act, and there are remarkably few FTSA decisions out there.
Relevant to this blog, the FTSA prohibits telemarketers from making, or knowingly allowing a solicitation call or text message to be made or sent if it “involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without first obtaining the recipient’s prior express written consent. Fla. Stat. § 501.059(8)(a). However, “automated system for selection or dialing of telephone numbers” is not a defined term and there has been no decision determining its meaning. One might argue—and several pending motions to dismiss in FTSA cases do—that the FTSA’s “autodialer” definition should be construed consistently with the TCPA’s narrow, industry-favorable autodialer definition, which we blogged about here. The FTSA’s autodialer provision actually was a separate statute that was passed in 1978, and the almost 200 pages of legislative history underlying that statute (yes, I have that history) has some discussion of what an autodialer is under Florida law. But, that’s an issue for another blog.
This post, instead, is focused on whether the FTSA applies only to purely intrastate calls and text messages (i.e., those that both begin and end in Florida) or whether the statute governs interstate communications as well. Fortunately, after performing a deep dive into the FTSA’s hard-to-come-by legislative history from 1990 (more than 300 pages worth of legislative history at that), I’ve discovered that the Florida Legislature addressed that question quite clearly. Specifically, in 1990 when the FTSA was being debated, the Florida Legislature explained:
Provisions of the bill attempt to restrict interstate telephone calls involved in soliciting a sale of consumer goods. To the extent this prohibition restricts interstate commerce, it may be too broad in its application and, therefore, constitutionally suspect.
S.B. 2938, Senate Staff Analysis and Economic Impact Statement § III (Fla. May 10, 1990) (emphasis added). The Legislature went on, noting that, in order to avoid the constitutional concerns it had identified with applying the FTSA to interstate communications, “[l]imitation of such prohibition to intrastate telephone calls [or text messages] would cure any constitutional deficiency.” Id. (emphasis added). Additional legislative history further confirms that the FTSA was intended to apply to purely intrastate communications:
The [C]ommittee [on Economic, Professional and Utility Regulation] substitute limits the application of the provisions to telephone solicitors making calls from a location in Florida to consumers in Florida. The original bill also applied to businesses from other states making calls to consumers in Florida.
S.B. 2938, Statement of Substantial Changes Contained in Committee Substitute for Senate Bill 2938 (Fla.). The referenced Committee substitute contains the autodialer and prerecorded message provision noted above.
So, there you go, the FTSA applies only to purely intrastate telemarketing calls and marketing text messages—straight from the state legislature’s mouth.
“Until you pin me, George, Festivus is not over!” See you in 2022.