In Florida, the Telephone Consumer Protection Act (“TCPA”) and the Florida Telephone Solicitation Act (“FTSA”) limit the use of automated systems for placing automated calls and sending automated text messages. Both the FTSA and the TCPA permit the use of automated dialing systems if the caller obtains 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:
1. Contain Clear and Conspicuous Disclaimers or Contractual Provisions
Pursuant to Section 501.059, Florida Statutes, the consent disclaimer/document must include “a clear and conspicuous disclosure informing the called party that . . . [b]y executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using 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.”
Accordingly, for an FTSA and TCPA consent disclaimer to be effective, it must be “clear and conspicuous.” 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.”). In determining whether a disclaimer is “clear and conspicuous” courts may analyze the location of the disclaimer on the document/webpage. Sullivan v. All Web Leads, Inc., 2017 WL 2378079, at *7 (N.D. Ill. June 1, 2017).
2. Do Not Make Consent a Condition to a Sale or the Provision of Services
Pursuant to Section 501.059, 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 express written consent must be in the form of an agreement between the caller and the consumer directly. See Mattson v. New Penn Fin., LLC, 2020 WL 6270907, at *3 (D. Or. 2020). Be careful purchasing “consent-based” leads lists or contacting individuals who consented to be contacted by a separate third-party. Consent for a partner or an associated entity to call the consumer may only be sufficient if the partner or associated entity is also clearly and conspicuously listed on the consent disclaimer. Id.
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, 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(g)(2), Florida Statutes, the consent disclaimer 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 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.”
6. Obtain the Contact Information and Consent Concurrently
Pursuant to Section 501.059(g)(2), Florida Statutes, the consent documentation and disclaimer must include “the telephone number to which the signatory authorizes a telephonic sales call to be delivered.” There cannot be an alternative document or source of the phone number and the phone number must be consistent with the consent documentation.
7. Ensure the Consent Bears the Signature of the Called Party
To comply with the FTSA, the consent must “bear the signature of the called party.” Section 501.059(g), Florida Statutes. Under the FTSA, “Signature” is defined to include “an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.” Section 501.059(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.