This blog post reports on two recent state telemarketing law developments that affect, among other things, marketing calls and text message transmissions.
Maryland Enacts New Law. Earlier this month, on May 3rd, Maryland Governor Wes Moore signed into law the Stop the Spam Calls Act of 2023, which will take effect on January 1, 2024. As we previewed here, the new law is notable because it will impose the same proscriptive consent requirements on automated marketing calls and text messages that currently exist in Oklahoma.
Florida Scales Back its Law. On May 25th, Florida’s governor signed into law H.B. 761, which took effect immediately to amend the Florida Telephone Solicitation Act (“FTSA”) in the following key ways:
- Autodialer Definition. The new law narrowed the definition of an autodialer from an “automated system for the selection or dialing of telephone numbers” to an “automated system for the selection and dialing of telephone numbers” (emphasis added). This aligns the definition in the FTSA with the definition of an “automatic telephone dialing system” in the TCPA, thus presumably bringing it within the ambit of the Supreme Court’s April 2020 opinion in Facebook v. Duguid.
- “Signature” Definition. The new law broadens the definition of “signature,” which is one of the requirements for obtaining “prior express written consent” under the FTSA, to include “an 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.”
- Text Message Solicitation Safe Harbor. Before a called party can bring an action for text message solicitations, the new law now requires that the called party first notify the telephone solicitor that the called party does not wish to receive text messages by replying “STOP” to the text message. Within 15 days, the telephone solicitor must stop transmitting such text message solicitations, although an opt-out confirmation message may be sent. Only if the telephone solicitor continues to transmit text message solicitations to the called party after the 15-day period concludes can the called party bring a legal action.
- Application of Amendments to Pending Cases. The changes set forth in the new law expressly apply to any suit filed on or after the new law’s effective date and to any putative class action not certified on or before that effective date.