As I reported yesterday, the Amendments to FTSA are very real. And it just became realer — and messier.
The critical Florida House Committee just passed Amendment 1 to HB 761 Florida’s Telephone Solicitation Act (“FTSA”)! But its not all good news for FTSA defendants.
A fellow TCPAWorld Dweller broke the news to us. You may remember her as the lady in blue fighting the good fight during Monday’s Subcommittee Hearing. Her name is Alexis Buese.
Alexis informed us that she predicts that the amended definition of FTSA auto dialer will not pass nor will the retroactivity provision. She also informed us that the House and Senate parties will have to meet somewhere in the middle by early next week!
Here are the KEY take aways from the Amendment:
Auto Dialer Definition: The amendment narrows the FTSA definition of an auto dialer by including “and.”
“Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the called party a telephonic sales call using an automated system for the selection and or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail;”
The amended FTSA auto dialer definition is a win for the defense IF it passes the Senate. A big IF.
Consent Definition: The amendment HEIGHTENS the consent standard to require a “signature” to include BOTH 1) an electronic or digital signature AND 2) “an act that demonstrates express consent, including, but not limited to, checking a box indicating consent or responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail solicitation.
This amended definition requires consumers to submit an electronic or digital signature — so under this amendment a check box or an acceptance of the FTSA disclosure would NOT be sufficient.
Safe Harbor Provision: The added safe harbor provision states you will not be liable under the FTSA Section (8) for any communication made within 30 days of: “1. The called party or consumer communicating with a telephone solicitor or other person, orally or by text message, that such called party or consumer does not wish to receive any communications from that telephone solicitor or person or the seller or organization represented by that telephone solicitor or person. 2. The called party or consumer effectively withdrawing a previously given valid consent.”
This amendment allows the called party to revoke their consent to the telephone solicitor OR “other person.” Meaning a person can text their stop to request to the Czar and that would suffice as a do not call request. Under the amendment, it is not clear WHO the stop request should go to — the telephone solicitor.
Retroactivity: The amendment changed the effective date of the bill to upon becoming a law and removed a provision purporting to apply the bill’s provisions retroactively.
Stay tuned FTSAWorld. We’ll obviously continue to keep a close eye on this.