“Consent: How It Can Protect You from Unwanted Phone Calls”

1. Automated telemarketing systems make it easy for businesses to contact thousands of consumers with just one click.
2. Florida has laws regulating the use of automated telemarketing systems to prevent telephonic harassment.
3. The Telephone Consumer Protection Act and the Florida Telephone Solicitation Act have strict provisions limiting the use of automated systems for placing calls and sending text messages.
4. Under Florida law, businesses must obtain the consumer’s prior express written consent before using automated telemarketing systems.
5. Obtaining the consumer’s consent can give businesses a competitive edge in the marketplace and limit their legal exposure. 1. Under the FTSA and Florida Statutes, a person cannot make or allow a telephonic sales call using an automated system without the prior express written consent of the called party.
2. In a TCPA claim, the defendant bears the burden of proving that prior express consent was given for the call.
3. Common law principles govern whether the provision of “prior express consent” to receive calls under the TCPA has occurred.
4. Online forms are a common way for businesses to obtain express written consent from consumers.
5. Online disclaimers concerning the use of automated systems must be “clear and conspicuous” to be enforceable under the TCPA. – Small terms and conditions at the bottom of a webpage did not establish notice of the terms for prior express written consent, leading to liability for the business.
– An online demographic form that clearly stated consent for communication was found to have procured consent under the TCPA.
– The design and location of disclaimers on a website can affect their enforceability, and businesses must ensure that disclaimers are clear and conspicuous. – Businesses without effective processes and procedures may face liability and class-action lawsuits.
– Businesses should seek legal counsel to review TCPA and FTSA compliance.
– Legal counsel is essential for businesses involved in TCPA or FTSA lawsuits to assess the viability of the “consent defense” in their unique case and in Florida’s legal framework.

https://www.jimersonfirm.com/blog/2023/06/consent-an-absolute-defense-to-violation-of-the-telephone-consumer-protection-act-and-florida-telephone-solicitation-act/