Reading Time: 5 minutes
In Florida, the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”) limit the use of automated systems for placing calls and sending text messages. For marketing calls and texts made with an automated dialing system or a recorded message, both laws generally require the called party’s “prior express written consent.”
Consent Checklist
For a business to ensure they have systems in place that adequately obtain a called party’s consent, they should consult competent legal counsel. To ensure compliance, businesses must track amendments to the FTSA and TCPA and developments in case law interpreting the FTSA and TCPA. Without reviewing the specific consent policies, procedures, and language employed, it is impossible to determine if a business has sufficiently obtained a called party’s consent under the FTSA and TCPA. Regardless, compliant TCPA and FTSA consent disclaimers should include the following. The statutory language below reflects the FTSA as amended in 2023.
1. Contain Clear and Conspicuous Disclaimers or Contractual Provisions
Pursuant to Section 501.059(1)(g)4., Florida Statutes, the consent agreement must include “a clear and conspicuous disclosure informing the called party that: a. By executing the agreement, the called party authorizes the person making or allowing a telephonic sales call to be made 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 dialing of telephone numbers, if applicable, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail.”
Accordingly, for an FTSA consent disclaimer to be effective, it must be “clear and conspicuous.” Present the disclosure where the consumer can easily see it at the moment they give consent.
2. Do Not Make Consent a Condition to a Sale or the Provision of Services
Pursuant to Section 501.059(1)(g)4.b., Florida Statutes, an effective consent disclaimer must indicate that the consenting individual “is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.”
3. Link the Consent to Your Specific Business
The FTSA requires the agreement to clearly authorize “the person making or allowing the placement of a telephonic sales call” to make the call. Section 501.059(1)(g)2., Florida Statutes. Be careful purchasing “consent-based” leads lists or contacting individuals who consented to be contacted by a separate third party. Consent given to one company may not cover calls by a partner or associated entity unless the agreement clearly authorizes that business as well.
4. Obtain the Consent of the Actual Called Party
Pursuant to Section 501.059(8)(a), Florida Statutes, the key determination is whether a business has the prior express written consent “of the called party.” Pursuant to Section 501.059(1)(a), Florida Statutes, “called party” means “a person who is the regular user of the telephone number that receives a telephonic sales call.” Businesses can seek to limit the risk of receiving the wrong party’s consent by requiring the consenting party to provide their personal contact information, not the contact information of a third party.
5. Ensure the Consent Language is Unambiguous
Unambiguous language is key to obtaining valid consent. Pursuant to Section 501.059(1)(g)2., Florida Statutes, the consent agreement is only valid if it “[c]learly 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 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.”
6. Obtain the Contact Information and Consent Concurrently
Pursuant to Section 501.059(1)(g)3., Florida Statutes, the consent agreement must include “the telephone number to which the called party authorizes a telephonic sales call to be delivered.” Capture the number as part of the same consent record, and make sure it matches the number you call.
7. Ensure the Consent Bears the Signature of the Called Party
To comply with the FTSA, the consent agreement must “[bear] the signature of the called party.” Section 501.059(1)(g)1., Florida Statutes. Under the FTSA, “signature” includes “[a]n electronic or digital signature if the form of signature is recognized as a valid signature under applicable federal law or state contract law” and “[a]n 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.” Section 501.059(1)(h), Florida Statutes.
Conclusion
Businesses who seek to comply with the FTSA and the TCPA by obtaining the called party’s consent must ensure that their consent procurement processes and procedures are legally sufficient to avoid significant legal liability. While this non-exhaustive checklist will provide businesses with a good starting point for creating consent procedures or evaluating the sufficiency of their consent procedures, businesses should consult competent legal counsel to review or create their consent procurement process. Businesses that do not obtain legally enforceable consent may face class action lawsuits and significant legal liability.