Hold the Phone! Florida Passes New Telemarketing Bill
Litigation & Dispute Resolution 06/15/21 Jake Bradley, Greg Everts, Zac Foster, John O'Neal
Answering pleas to amend Florida’s telephone solicitation and unlawful acts and practices laws found in sections 501.059, 501.604, and 501.616, Florida Statutes, the Florida Legislature unanimously passed CS/SB 1120 (the Act) last month. With the Act set to go into effect this July 1st (absent action by Florida’s governor), businesses should take action now to ensure their consumer outreach methods comply. Accordingly, it is important to note that the bill . . .
Requires Prior Express Written Consent to Make Automated or Recorded Sales Calls.
The Act requires a company to obtain “prior express written consent” of the “called party” before it can “make” or “allow” a telephonic sales call using an automated system. It further removes the law’s previous exceptions for making such calls without consent. This means that your business must obtain the called parties’ express written consent even when using an automated dialing system that only responds to calls, calls parties not on Florida’s “no sales solicitation calls” list, or calls parties with whom an established business relationship exists if the call is a “telephonic sales call.”
Wait? What does that all mean?
What’s “prior express written consent?”
The Act’s definition of “prior express written consent” largely mirrors the TCPA’s (“Telephone Consumer Protection Act”) definition and means a “written agreement” that
(1) “Bears the signature of the called party,” which includes an electronic or digital signature;
(2) “Clearly authorizes” the party making or allowing the call to deliver a telephonic sales call using an automated system, playing a recorded message, or transmitting a prerecorded voicemail;
(3) Includes the authorized telephone number to be called; and
(4) Includes a clear and conspicuous disclosure that: (a) by executing the agreement, the called party authorizes the placement of a telephonic sales call using an automated system or the playing of a recorded message; and (b) the called party is not required to sign the agreement as a condition to purchasing any property, goods, or services.
What’s an “automated system?”
The Act’s definition of an “automated system” is substantially broader than the definition of an “automated telephone dialing system” under the TCPA and the Supreme Court’s recent decision in Facebook v. Duguid. Under the Act, an “automated system” is any system used “for the selection or dialing of telephone numbers or the playing of a recorded message.”
What’s a “telephonic sales call?”
Section 501.059(g), Florida Statutes, broadly defines a “telephonic sales call” as any call, text, 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.”
Who is the “called party?”
According to the Act, only the person “who is the regular user of the telephone number that receives a telephonic sales call.” But the Act provides a rebuttable presumption that a telephonic sales call made to any area code in Florida is made to a Florida resident or person in Florida.
What’s my exposure?
The Act creates a private right of action for any violation of Section 501.059, which includes the provisions addressed in this update. Aggrieved parties can recover the greater of actual damages or $500. If a court finds the violation was willful or knowing, it has the option to increase this amount by up to three times (up to $1,500).
Is that $500 per call or per action?
That remains to be seen. There are numerous cases interpreting a similar civil remedy provision under the Florida Consumer Collection Practices Act that could provide strong support for an argument that the damages under the Act are capped at $500 per lawsuit.
Are attorneys’ fees recoverable?
Maybe. The current version of Section 501.059(10)(a) allows the prevailing party to recover attorneys’ fees in any “civil litigation resulting from a transaction involving a violation of this section.” The Act re-designates this provision as Section 501.059(11). But whether a sales call violating Section 501.059 constitutes “a transaction involving a violation of this section” remains to be seen.
Are there any other new restrictions?
Yes, a few more of note:
- The Act amends certain provisions of Florida’s Telemarketing Act, which defines a “commercial telephone solicitation” as (a) unsolicited calls made by a commercial telephone seller or an automated dialing machine (described above) to induce the purchase or investment in consumer goods or services; (b) other communications offering a gift, award, or prize, or where a response call is invited and the salesperson intends to enter into a sale during the call; or (c) other communication that represents the price, quality, or availability of consumer goods or services and invites a response by telephone or is followed by a telephone call to the recipient.
- Restricts Call Past 8 p.m.: The Act shortened by one hour the period when commercial telephone solicitation calls can be made. The revised timeframe is 8 a.m. to 8 p.m. in the call recipient’s time zone (down from 8 a.m. to 9 p.m.).
- Restricts Calling More Than Three Times: The Act also prohibits making more than three commercial telephone solicitation calls over a 24-hour period on a single subject to the same person. Your business should avoid making more than three similar solicitation calls in a day to the same person—even if calling from a different number each time.
- True Caller Identification: The Act forbids using technology that fabricates a caller’s identification number. Your business should not attempt to conceal its true identity when making calls. In fact, under the Act, making sales calls through technology designed to misrepresent the caller’s identity constitutes a second degree misdemeanor.
Ultimately—when it comes to sales and commercial solicitation calls—obtain prior express written consent from call recipients, stop making calls after 8 p.m. in the recipient’s time zone, do not make similar calls to the same person more than three times in a day, and be transparent with your caller identity.
In the meantime, do call (or email) the Quarles & Brady TCPA team to discuss the impact of the Act on your business, as well as the impact of federal telephone solicitation and consumer protection laws.