By Megan Moon • JBA Young Lawyers Section Board of Governors
We’ve all sent text messages we regret.
If you market goods and services to consumers in Florida, a newly revised law may land your company in a lot more than hot water for unwanted marketing texts and it could cost you big time.
More than 30 putative class action lawsuits have been filed against consumer-facing entities in Florida courts since the Florida Telephone Solicitation Act gained teeth in July 2021.
The revised law has been dubbed Florida’s “Mini TCPA,” loosely modeled after the Federal Telephone Consumer Protection Act.
Despite its nickname, the FTSA is anything but mini and applies more broadly (and, some say, more onerously) than its federal counterpart.
Florida businesses should take steps now to ensure their terms, conditions and messaging procedures fall in line with the new act and reduce their class action exposure.
The revised FTSA places tighter boundaries on companies’ telemarketing to Florida consumers, creating new and burdensome restrictions for all “telephonic sales calls” including text messages placed using an automated system or recording.
The law now requires businesses to obtain prior express written consent before making these calls to Florida residents and Florida area codes.
A four-part definition of “prior express written consent” includes the signature and phone number of the called party, clear authorization and conspicuous disclaimers.
The law also dictates who companies can send messages to – only those who have satisfied the strict consent requirements – and when (8 a.m. to 8 p.m.) as well as how many messages a recipient can receive in a certain time frame – not more than three messages in a 24-hour period to the same person on the same subject matter.
The requirements for companies to show consumers consented to these messages have also have become more onerous, including strict “opt-in” requirements and appropriate terms and conditions.
The penalty for failing to adhere to the FTSA includes uncapped statutory damages at $500 per violation, potential treble damages and attorneys’ fees.
These damages are steep and particularly harsh given that marketers typically send out hundreds or thousands of promotional messages in today’s digital marketing age.
This also makes these cases ripe for class action litigation, as the first cases testing the FTSA have borne out.
Damages like this, including class action fee awards, can turn a run-of-the-mill text campaign into bet-the-company litigation overnight.
If you have clients who utilize text messages for marketing consumer goods or services, they may be at risk under Florida’s new FTSA. The cases filed to date have run the gamut from large consumer corporations with massive marketing campaigns to local suppliers, medical offices and even restaurants.
Companies should take proactive steps to mitigate the risks posed by the FTSA, such as:
• Review terms and conditions to ensure clear and conspicuous disclosures and opt-in requirements.
• Obtain prior express written consent for all promotional texts, calls and emails and keep a record of proper consent.
• Put in place systems to recognize and honor opt-out requests.
• Require FTSA compliance by marketing vendors and employees, including consideration of FTSA-related indemnification when using third-party advertising and marketing services.
• Consider including a class action waiver in messaging terms and conditions.
Megan Moon is a business litigation shareholder with Gunster in Jacksonville.
