On June 29, 2021, Florida Gov. Ron DeSantis signed into law Senate Bill 1120, which amends the Florida Telemarketing Act and creates a state-law analog to the federal Telephone Consumer Protection Act (TCPA).
Florida’s “Mini-TCPA” prohibits telemarketing calls involving “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 without the prior express written consent of the called party” (emphasis added). Florida lawmakers enacted this statute in response to recent case law limiting the applicability of the TCPA. Companies should take steps to avoid potential liability related to phone calls under this new act.
Here are five key features of the Florida statute.
1. The definition of autodialer is broader than under the TCPA. The statute applies to the use of “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This definition of autodialer is much broader than the TCPA’s definition, which includes only devices that use a random or sequential number generator, as discussed in an April 2, 2021, McGuireWoods alert.
2. The statute sets out specific requirements for obtaining “prior express written consent.” The statute specifies what constitutes “prior express written consent” to receive automated telemarketing calls. Under the statute, “prior express written consent” means a written agreement that:
- bears the signature of the called party;
- “clearly authorizes” the delivery of “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” to the called party; anda
- includes the telephone number to which the call may be delivered.
In addition, the written agreement must contain the following two “clear and conspicuous” disclosures to the called party:
- “By 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.”
- “He or she 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. The statute prohibits the use of technology that conceals the identity of the caller. The state law prohibits telemarketers from using “technology that deliberately displays a different caller identification number than the number the call is originating from to conceal the true identity of the caller.” The use of this technology is a second-degree misdemeanor.
4. The statute imposes new limits on the timing and number of call attempts. The statute shortens the legal calling period from 8 a.m.-9 p.m., to 8 a.m.-8 p.m. Note that Florida crosses two time zones. In addition, the statute limits telemarketers to three attempts to contact a person on the same subject matter within a 24-hour period.
5. Aggrieved called parties have a private right of action. The statute creates a private right of action for called parties who are aggrieved by a violation of the statute. It authorizes an award of actual damages, $500 in statutory damages (or up to $1,500 for a willful violation), and injunctive relief. The statute includes a presumption that phone calls made to a Florida area code are made to a Florida resident or someone in the state of Florida.
These amendments became effective July 1, 2021. Given these changes to Florida’s telemarketing laws, businesses engaging in Florida should consult with TCPA counsel to make appropriate changes to their compliance programs.
McGuireWoods has a team of experienced TCPA and class action litigators monitoring developments with the TCPA and its new Florida analog. The team is able to assist with developing programs for compliance with the new mini-TCPA and any litigation that may result from it.