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A recent decision out of the U.S. District Court for the Middle District of Florida was very favorable for businesses defending Florida Telephone Solicitation Act (FTSA) and Florida Telemarketing Act (FTA) claims. The decision in Adams v. Safelite Group reinforced the May 2023 FTSA amendments, particularly the text message “STOP” safe harbor provision, which applies to uncertified putative class actions pending when the amendments took effect. Additionally, the court have clarified critical points regarding FTSA and FTA claims: for an FTSA claim to proceed, plaintiffs must specifically allege they replied “STOP” to any unsolicited message before filing suit, as this opt-out action is now a prerequisite under the amended FTSA; the FTA’s definition of “commercial telephone solicitation” applies only to communications inviting a telephone response or followed by a sales call, thereby excluding text messages without such elements.

These rulings impose stricter pleading requirements for plaintiffs and limit the scope of qualifying communications, providing companies with robust defenses against FTSA and FTA claims. Let’s delve into this decision and their implications for defending FTSA and FTA class actions, whether newly filed or still pending.

FTSA Claims and the 'STOP' Requirement

Recent amendments to the FTSA impose an added burden on plaintiffs regarding text message solicitations. Specifically, the FTSA requires plaintiffs to allege they replied “STOP” to any unsolicited text message as a precondition for bringing claims. According to Florida House Bill 761 (2023), effective May 25, 2023, plaintiffs must allege that they received at least one text message from an automated system within 15 days after replying “STOP” to a previous message. This amendment reflects a safe harbor provision aimed at preventing frivolous litigation by requiring clear opt-out attempts.

The court in Adams, relying on the plain language of the statute and other recent decisions, dismissed the plaintiff’s FTSA claim because the plaintiff failed to allege that she replied “STOP” to an unsolicited communication. The ruling emphasized that the plaintiff did not—and, could not—satisfy the new statutory pleading requirements, thus barring class action claims under the amended FTSA.

This case underscores the heightened pleading standard, as plaintiffs must now specifically include a “STOP” response in their complaint to maintain an FTSA claim if not certified prior to the effective date of the amendment.

FTA and the Scope of 'Commercial Telephone Solicitation'

The court also clarified claims under the Florida Telemarketing Act (FTA) that in 2021 placed new restrictions on “commercial telephone solicitation phone calls” by shortening the permissible calling period to between 8 a.m. and 8 p.m. (from 8 a.m. to 9 p.m.); by limiting the number of calls to the same person about the same topic to three per 24-hour period; and by creating criminal penalties for using caller identification spoofing technology in making these calls. Section 501.603(1) of the Florida Statutes defines commercial solicitation to include certain written communications, but only if they invite a response by telephone or are followed by a salesperson’s call.

In Adams, the text message the plaintiff received included a link to an advertised product but did not invite a telephone response or include a phone number. Because the FTA clarifies that listing a phone number without a clear invitation to call does not constitute an invitation to respond, the court found the text fell outside the statute’s scope. Thus, even if a text message qualifies as a “written communication,” the plaintiff’s allegations failed to show the message met FTA requirements for “commercial telephone solicitation.”

Implications for Plaintiffs and Class Actions

With that, the court dismissed the complaint—a big win for Safelite and all businesses facing FTSA and FTA litigation. The recent amendments to the FTSA and the FTA’s strict definition of solicitation impose higher standards on plaintiffs seeking relief for alleged telemarketing violations. The “STOP” response requirement under the FTSA confers a safe harbor that can protect companies from litigation if plaintiffs fail to allege clear opt-out attempts. Similarly, the FTA’s telephone response requirement limits its application, excluding text messages that do not invite direct phone interactions.

Republished with permission. This article, "Navigating Claims Under the Florida Telephone Solicitation Act and Florida Telemarketing Act," was published by Daily Business Review on November 12, 2024.

 

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