The legislation (HB 761/SB 1308) includes several important changes that will likely reduce opportunities for litigation under the FTSA.
Narrowed autodialer definition
When it was enacted in 2021, the FTSA established new obligations for callers that used “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This definition of an automated calling system, or “autodialer,” was notable because it went beyond the federal definition in the Telephone Consumer Protection Act. The new amendments limit the law’s application only to “telephonic sales calls 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.” As a result, many common dialing technologies may no longer be covered by the FTSA.
Fewer calls in scope
The FTSA originally required callers to obtain prior express written consent before using an autodialer to place any “telephonic sales call,” which it defines as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.” The new amendments restrict further the FTSA’s application to “unsolicited” calls. Therefore, calls placed in the context of an existing relationship with a consumer may no longer fall within the FTSA’s scope, as long as the consumer (called party) has not expressly declined to receive calls.
New ways to establish consent
The FTSA originally required an electronic or digital signature to establish prior express written consent. The new amendments allow for express consent to be demonstrated through actions, “including, but not limited to, checking a box indicating consent or responding affirmatively to receiving a text message, to an advertising campaign, or to an e-mail solicitation.”
Notice and cure period for text messages
The new amendments would require consumers to notify solicitors that they do not want to receive text messages by replying “STOP,” and would allow solicitors up to 15 days to cease sending text messages. Consumers would only have grounds to bring an action under the revised FTSA if they withhold or revoke consent and the solicitor continues to send text messages after 15 days.
Retroactive application for class actions
If enacted, the amendments would have retroactive effect. In addition to applying to lawsuits filed on or after the law’s effective date, they would affect “any putative class action not certified on or before the effective date of [the] act.”
Immediate application
The bill provides that the amendments will take effect upon becoming law.
Next Steps
We encourage clients to stay vigilant about compliance with telephone marketing laws. If you have questions about the implications of these developments, please contact our team.
Authored by Mark Brennan and Ambia Harper.
