The Florida legislature gaveth (to the telemarketing plaintiffs’ bar) in July 2021 when it amended the Florida Telephone Solicitation Act (FTSA). That same state legislature might now taketh away and cure some of the class action abuses its amendments have created.

Last month, in the context of a deep dive into the legislative history of the FTSA, we previewed a major source of ambiguity in the statute that was exacerbated in July 2021. That was when Florida amended the statute to include a private right of action and uncapped statutory damages between $500 and $1,500 for each telemarketing call or text message that violates the FTSA’s autodialer provision.

Specifically, the FTSA prohibits placing telemarketing calls or sending marketing text messages with “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).

Sharp-eyed readers will notice a pesky “or” where the federal Telephone Consumer Protection Act’s (TCPA) definition of an “automatic telephone dialing system” uses an “and.” 27 U.S.C. § 227(a). That small difference could mean that using a system that selects numbers, even if those numbers are subsequently dialed manually by a live human, might still be a potential violation of the FTSA. The July 2021 amendment did not narrow this language, and despite a massive influx of FTSA class action filings, there has been no decision or guidance on whether the Florida legislature inadvertently created an unprecedented expansion of the autodialer definition.

This month, state legislators introduced House Bill 1095 in the Florida House of Representatives to fix that small problem with huge implications, and refocus the statute on the consumer harm that led to the legislature enacting the autodialer statute in 1978, which subsequently became the FTSA in 1990. Indeed, way back when in 1978, the Florida Senate explained the “why” for enacting an autodialer statute:

[E]lectronic systems provide automatic, sequential dialing . . . [and] deliver a taped pitch . . . When automated systems are used and programmed for a specified length of time for each call, most telephone companies in Florida do not have the equipment which provides a disconnect when a subscriber hangs up. Therefore, a subscriber who receives an automated, recorded call and hangs up cannot use his phone until the programmed call is completed.

That was the same type of random-fire, “tying up the phone lines” concern articulated by the framers of the TCPA about a decade later. To its credit, the Florida legislature expressed “some doubt about the constitutionality of prohibiting only one kind and method of telephone solicitation,” “discriminat[ing] . . . between automated and nonautomated systems.”

House Bill 1095 changes the FTSA to more align with the TCPA’s autodialer definition. If enacted, the proposed amendment would prohibit sending calls or text messages with “an automated system for the selection and [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. Great news to be sure.

But note that the Bill also contains amendments narrowing the effect of consent. First, it limits the time when a telemarketing call or text message can be placed or sent in response to “an express request” to 120 days after the request is made. And second, the Bill limits the number of telemarketing calls or marketing text messages that may be placed or sent in response to an initial inquiry from the recipient to two. While these are tedious compliance obligations to be sure, most telemarketers likely would welcome the amendment overall.

We will continue to provide updates about the FTSA as the legislature and courts move forward.