Consent: An Absolute Defense to Violation of the Telephone Consumer Protection Act and Florida Telephone Solicitation Act
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Technological advances have made telemarketing easier than ever. When utilizing automated telemarketing systems, with a single click of a mouse, businesses can place thousands of phone calls and send tens of thousands of individual text messages. With the same click of a mouse, Florida businesses can unknowingly subject themselves to hundreds of thousands of dollars of liability.
As these new mass-marketing strategies became available, legislatures across the country became concerned with telephonic harassment and adopted specific laws regulating the use of these new technologies. As a result, in Florida, businesses must comply with the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”) when using automated systems to contact prospective consumers.
Telephone Consumer Protection Act and Florida Telephone Solicitation Act
The TCPA and FTSA contain strict provisions limiting the use of automated systems for placing automated calls and sending automated text messages. Under Florida law, the use of automated telemarketing systems is permitted if the caller obtains the consumer’s prior express written consent. In other words, “prior express written consent” is an absolute defense to violation of the FTSA and TCPA. Accordingly, businesses that are able to effectively implement strategies for obtaining a consumer’s consent can obtain a competitive edge in the marketplace while limiting their legal exposure.
Prior Express Written Consent
Burdens and Standards
Under the FTSA and pursuant to Section 501.059(8)(a), Florida Statutes, “[a] person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party (emphasis added).”
“In a TCPA claim, whether or not express consent is given is not an element of the claim, but is instead ‘an affirmative defense for which the defendant bears the burden of proof.’” Lamont v. Furniture N., LLC, 2014 WL 1453750, at *2, (D.N.H. 2014) (internal citations omitted); see also In re Rules & Regulations Implementing the TCPA of 1991, 27 FCC Rcd 1830, ¶ 33 (In re Rules 2012) (“[S]hould any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained.”). Common law principles govern whether the provision of “prior express consent” to receive calls under the TCPA has occurred. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014) (“We … presume from the TCPA’s silence regarding the means of providing or revoking consent that Congress sought to incorporate the ‘common law concept of consent.’”).
One of the most common ways for a business to obtain a consumer’s express written consent is through online forms. In online portals, consumers often provide businesses with their contact information. These online portals may contain disclaimers concerning the use of automated systems to contact the consumer or may even require explicit approval of the use of such systems. For these online disclaimers to be enforceable under the TCPA, they must be “clear and conspicuous.” Sullivan v. All Web Leads, Inc., 2017 WL 2378079, at *7 (N.D. Ill. June 1, 2017).
In Sullivan, small terms and conditions at the bottom of a webpage did not establish “notice of the terms to which [the called party] purportedly gave prior express written consent, let alone a disclosure that was ‘clear and conspicuous’ under the TCPA.” Id. Accordingly, the disclaimer was ineffective, and the business was subject to liability. Id. Conversely, an “online demographic form which said ‘[b]y providing my telephone number, I authorize [a lender] to contact me at [the phone number provided] using any means of communication, including … calls placed to my cellular phone using an [ATDS] [or] calls using prerecorded messages … regarding any current … loans … serviced by [the lender]” was held to have procured consent under the TCPA in Lucoff v. Navient Sols., LLC, 981 F.3d 1299, 1304 (11th Cir. 2020).
Finally, courts may look to “the design and content of the website and the agreement’s webpage” in determining the enforceability of online agreements. Herman v. Seaworld Parks & Ent., Inc., 2016 WL 7447555, at *5 (M.D. Fla. 2016). In analyzing whether a disclaimer is conspicuous, Courts may even analyze where on the screen the disclaimer appears. See Temple v. Best Rate Holdings LLC, 360 F. Supp. 3d 1289, 1304–05 (M.D. Fla. 2018) (“the Terms and Conditions Hyperlink was located above the ‘Get a Quote’ button—thus, Plaintiff must have brought the Terms and Conditions Hyperlink within his line of vision before viewing and proceeding to click the ‘Get a Quote’ button.”).
The Key to Automating Telephonic Communications in Florida
Understanding the legal limitations on the use of automated telephonic systems is critical for any business that wants to effectively use these systems to contact consumers. It is crucial for these businesses to implement processes and procedures for effectively obtaining a consumer’s prior express written consent. In other words, when obtaining consent online, it is important that all disclaimers are “clear and conspicuous” and that the consent obtained is enforceable under Florida law.
Businesses that do not have effective processes and procedures in place may be subject to liability and may face class-action lawsuits. Furthermore, businesses that operate in this manner should obtain legal counsel to review their specific consent procedures for TCPA and FTSA compliance. For businesses entangled in TCPA or FTSA lawsuits, seeking legal counsel becomes essential to thoroughly assess the viability of the “consent defense” within the context of their unique case and the existing legal framework in Florida.