DeSantis Reduces Robocall Restrictions After Many Fla. Class Actions

Florida will lessen limits on telemarketing, potentially reducing the number of class-action lawsuits filed under the Florida Telephone Solicitation Act (FTSA). Gov. Ron DeSantis (R) signed a bill (HB-761) Thursday loosening state robocall restrictions the same week he announced a presidential run. The new law is likely to lessen autodialer litigation in a state that briefly had some of the tightest restrictions, said telemarketing lawyers.

Florida has had a tsunami of class-action lawsuits in the past two years (see 2206100049). Mirroring Florida’s 2021 approach (see 2305040041), other states like Oklahoma and Maryland also added restrictions beyond what’s in the federal Telephone Consumer Protection Act (TCPA).

But the DeSantis-signed bill dampens FTSA, including by narrowing the definition of autodialer to an automated system used for selection “and” dialing of phone numbers. The law was previously broader because it said “or.” The new law also says an “act demonstrating consent,” which might include a simple yes, counts as a signature for giving express written consent. And it gives businesses 15 days to honor a customer’s request to stop receiving texts. The law, which took effect immediately, applies retroactively to July 1, 2021, and affects any class action not certified on or before the law’s effective date.

The new law will cut down on "frivolous" class-action lawsuits by bringing FTSA more in line with the federal TCPA and most other state laws, said Hogan Lovells telecom attorney Mark Brennan on Friday. After the U.S. Supreme Court narrowed the definition of autodialer in the April 2021 Facebook v. Duguid, “Florida became the new hotbed for robocalling class actions, as the plaintiff’s bar sought to exploit [FTSA's] unusual and seemingly very broad autodialer definition,” he emailed. “These changes are more about scaling back the windfall that had gone to the plaintiff’s bar -- those lawyers, rather than consumers, were receiving the benefits.”

Florida will still prohibit “unsolicited marketing calls and texts that use autodialers to select and dial a consumer’s telephone number,” said Brennan. “The biggest problem we’ve seen in this space is bad actors like scammers and fraudsters -- they don’t care what the law [says] anyway.”

Floridians “are about to start getting a lot more robocalls and texts,” TCPA attorney Eric Troutman blogged Friday. It means “the end of so many frivolous FTSA class actions,” he said. “But still, it is a bit odd for a newly-minted presidential nominee to put himself in harm’s way by approving an amendment that will make it VERY hard for folks in his state to sue robocallers.” Troutman predicted FTSA defendants will seek to dismiss pending class actions by highlighting what HB-761 says on retroactivity.

Florida opened “a floodgate of litigation” when the legislature expanded telemarketing restrictions in 2021, blogged Shani Rivaux and other Pillsbury attorneys earlier this month. FTSA penalties can be “financially devastating, especially for businesses underinsured against exposure,” said the lawyers: This year’s HB-761 “dramatically” decreases FTSA liability. Supporters “believe that the amendment reaches a delicate balance between protecting consumers from harassing telemarketers and allowing businesses to participate in good-faith telemarketing,” while ”opponents warn that the amendment would enable telemarketers and companies to swarm Floridians with unsolicited calls.”

"The FTSA contained a number of ambiguities that made litigation costly and time consuming, particularly class action litigation," Rivaux said Friday. "The revisions to the FTSA help bridge some of those gaps," but Rivaux predicted "even with these changes we will continue to see class action litigation."