As discussed in prior articles, Senate Bill 1120 amended the Florida Telephone Solicitation Act (FTSA) and transformed the statute into a “mini TCPA” by incorporating many of the same toxic elements found in the federal TCPA, including a broad ATDS definition and a private right of action with $500 statutory damages, which can be tripled for willful violations.
The revisions to the FTSA went into effect on July 1st, and certain Florida class action attorneys have wasted no time taking advantage of the private right of action and statutory damages provisions to file their clients’ claims in state court.
SB 1120 was compiled in haste in a knee-jerk response by the Florida legislature to the Supreme Court’s landmark Facebook ruling, which narrowed the statutory definition of “automated telephone dialing system” found in the TCPA to those few dialing systems that incorporate a random or sequential number generator function.
Thanks to Facebook, many TCPA lawsuits premised on the use of an ATDS are now being countered with motions to dismiss, to varying degrees of success. The revamped FTSA eliminates that hurdle for FTSA claims filed in Florida state court, while at the same time providing Florida class action firms like Shamis & Gentile, Hiraldo P.A., and the Law Offices of Stefan Coleman with the same rich statutory damages they’ve grown fat on over the course of the past five years.
These first few lawsuits represent testing of the waters for the plaintiff’s counsel. If state court judges prove sympathetic to FTSA claims and rule accordingly, by mid-2022 calls and texts to Florida numbers that would have triggered a TCPA claim in prior years will instead be litigated in state court as FTSA claims.
Of course, the TCPA’s prior express written consent exemption also applies to FTSA claims, but that is cold comfort for those defendants being forced to tell it to a Florida judge.
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