On June 29, 2021, Florida Governor Ron DeSantis signed into law CS/SB 1120 (2021), a new bill restricting telephone solicitation effective July 1, 2021, that significantly amends the state’s telemarketing laws (see: https://www.flsenate.gov/Session/Bill/2021/1120/BillText/er/PDF). This bill will dramatically impact businesses engaged in telemarketing to Florida residents.
Regulates a Larger Class of Automated Calling Systems
The amendments prohibit all telemarketing sales calls, text messages and direct to voicemail (a.k.a. “Ringless voicemail”) messages using “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message” without prior express written consent. But this limitation is substantially broader than the definition of an “automatic telephone dialing system” under the federal Telephone Consumer Protection Act (TCPA), as more narrowly interpreted recently by the U.S. Supreme Court in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021). It arguably would apply to any system that “automat[es]…the selection or dialing of telephone numbers”, including manual “click to dial” systems that use computers to select numbers to be clicked, or even potentially a system that manually selects numbers to be called but automates their actual dialing. However, state telemarketing laws are enforceable if they are more restrictive than the TCPA and contain more expansive consumer protections. In fact, the TCPA contains a provision that expressly provides that more restrictive intrastate requirements regarding the use of automatic telephone dialing systems, the use of artificial or prerecorded voice messages or the making of telephone solicitations will not be preempted. 47 U.S.C. Sec. 227(e).
Eliminates Prior Safe Harbors
The Florida bill expands the scope of the Florida statute’s preexisting restrictions in several ways. It removes prior safe harbors to the autodialer/recorded message restriction including:
· Calls made in response to calls initiated by the consumer or called party;
· Calls made to numbers screened for unlisted numbers and against the Florida state “no sales solicitation calls” list;
· Calls concerning goods or services previously purchased by the called party.
Now, such communications may only be made with the “prior express written consent of the called party”, as evidenced by a signed (or digitally signed) writing including the telephone number to which it applies.
Private Right of Action
The amendments also create a private right of action for any violation of amended Fla. Stat. Section 501.059 for automated and prerecorded call and do-not-call violations, with the right to recover $500 to $1500 (for willful or knowing violations) in statutory damages, plus potential attorneys’ fees in favor of the consumer. In applying this right of action, the bill establishes a rebuttable presumption that a call made to any Florida area code (i.e. 305, 904, 954, 813, etc.) is made to a Florida resident or to a person in Florida at the time of the call. This means that an automated call to a mobile number with a Florida area code that is used by a non-Florida resident will presumptively be a call regulated under the statute. The private right of action is not limited to autodialed and recorded message claims but applies to any “violation” of Section 501.059, including the statute’s preexisting restrictions on calls to persons registered on Florida’s do-not-call list or made a do-not-call request; “spoofed” calls failing to transmit the caller’s originating telephone number; and calls disguising the caller’s voice.
New telemarketing practices are among the bill’s reforms. For example, the amendments restrict telemarketing hours to between 8 a.m. and 8 p.m. (instead of 9 p.m.). They also preclude a telemarketer from calling a single consumer about the same subject more than three times over any 24 hour period.
"Telephone Sales Call” is Broadly Defined
Companies doing business with Florida consumers should be aware that a “telephone sales call” is very broadly defined under the Florida statute 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.” Companies that use direct mail, digital or broadcast advertising to generate inbound calls from Florida residents (or consumers with a telephone number with a Florida area code), can no longer simply return those calls through automated calling systems unless they first standardize some method to obtain express written consent (i.e. by returning a signed form or via text message), or make alternative use of true manual calling. It is important to let your call center managers know about this and to train call center staff to be compliant with the new Florida law.
The Florida bill amending the state’s telemarketing laws is a significant set of reforms that may make Florida a favored forum for consumer class actions predicated on telemarketing claims. The broad definition of an automated system, the detailed requirements for written consent, statutory damages, presumption of residency and potential attorneys’ fees recovery will likely attract plaintiffs’ lawyers to file claims. As such, it would be prudent for any company engaging in any telemarketing to review its compliance program in light of these amended Florida telephone solicitation laws.