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Florida H.B. 761 which amends the Florida Telephone Solicitation Act (“FTSA” Fla. Stat. § 501.059) has passed both houses and is awaiting Governor Ron DeSantis’ signature. The proposed amendments significantly restrict the scope of the FTSA by narrowing the definition of an autodialer, allowing customers to give consent in various ways, including through an act, and creating a safe harbor period for businesses that abide by a customer's request to stop texting.
If signed, H.B. 761 amends the FTSA in the following ways:
H.B. 761 revises the prohibition on telephonic sales calls that use an automated system to specifically include unsolicited calls using automated systems for the selection and dialing of telephone numbers or playing of a recorded message. (Previously, the statute described such automated systems as being used for the selection or dialing of telephone numbers or playing of recorded messages.) As revised, a violation of the FTSA would only occur where an automated system is used to both select and dial telephone numbers.
H.B. 761 clarifies what constitutes clear and conspicuous disclosure and expands the definition to include telephonic sales call made by telephone call, text message, or voicemail transmission.
H.B. 761 revises the definition of "prior express written consent" to include automatic telephone dialing system and replaces the term “signatory” with “called party.”
H.B. 761 expands “signature” for purposes of giving prior express written consent to include: an act or electronic or digital signature, to the extent that the act demonstrates express consent or the signature is recognized as a valid signature under applicable federal law or state contract law. An “act demonstrating consent” may include a simple affirmative response. (Previously, the statute specified only an electronic or digital signature is considered a signature for giving such consent.)
Most notably, H.B. 761 provides businesses a safe harbor period of 15 days from the date a consumer notifies the telephone solicitor that he or she does not want to receive text message solicitations. The called party may bring an action for violations only if the called party does not consent to receive text messages from the telephone solicitor and the telephone solicitor continues to send text messages to the called party 15 days after the called party provided notice to the telephone solicitor to cease such text messages.
The House passed H.B. 761 on April 26, 2023 and the Senate passed the bill on May 2, 2023. Gov. DeSantis has 15 days following presentment to sign or veto the bill.
If signed into law, H.B. 761 becomes effective immediately and is remedial in nature, applying retroactively to July 1, 2021. This retroactive applicably also applies to any class action not certified on or before the effective date of the bill.
