Recently, the Florida legislature passed CS/SB 1120 revising and materially expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act . Those familiar with the Telephone Consumer Protection Act (“TCPA”) will certainly recognize some of its provisions. Significantly, the bill includes a private cause of action for violations of the Florida Do Not Call Act and requires prior express written consent for automated or prerecorded calls or texts. If Governor DeSantis signs, or fails to take action on, CB/SB 1120, it will become law and be effective on July 1, 2021.
Revisions to the Florida Telemarketing Act
The changes that CB/SB 1120 would make to the Florida Telemarketing Act are significant. Notably the changes include:
Sales Hours – It would alter the time window for sales calls. A commercial telephone sales representative would be restricted to making sales calls between the hours of 8AM-8PM;Calls with a 24-hour window – It would cut down on the amount of calls a seller could make during a 24-hour window. Specifically, if it would restrict the number of calls to more than three “commercial telephone solicitation phone calls” within a 24-hour period on the same matter or issue, irrespective of the number used by the seller; andManipulation of Caller-ID – It would prohibit the use of technology that intentionally shows a different caller identification number to conceal the true identity of the caller. This offense would be punishable as a second-degree misdemeanor.
Importantly, the new amendments to the Act will apply to both non-exempt and exempt entities. That is, even if a business falls under one of the current Florida Telemarketing Act’s numerous exemptions, it will have to comply with the revisions above.
Revisions to the Florida Do Not Call Act
The most notable revision is the addition of a private right of action to the Florida Do Not Call Act. With the passage of CB/SB 1120, consumers would be able to bring an action seeking to recover the greater of actual damages or $500. The court would also have the discretion to award treble damages for violations committed willfully or knowingly.
Additionally, the bill now requires “prior express written consent.” Such consent would be required before making a telephonic sales call or sending a text if such correspondence involves an “automated system for the selection or dialing of telephone numbers” or a prerecorded message. The bill’s definition of “prior express written consent” would require an opt-in with the signature of the called party, the specific telephone number that is authorized to receive telephonic sales calls, and a disclosure that informs the called party of the agreement.
CB/SB 1120’s definition of dialer technology is broader than that of the TCPA. The amendments to the Florida Do Not Call Act refer to “automated systems for the selection or dialing of telephone numbers,” which is more expansive than the TCPA’s definition of “automatic telephone dialing system,” (ATDS). In April, the U.S. Supreme Court determined that ATDS only included devices that use a random or sequential number generator to either store or produce a telephone number. CB/SB 1120 creates the possibility that a dialer which does not qualify as an ATDS under the TCPA would be subject to the Florida law.
Will the bill become law?
Upon receipt of the bill, he will have 15 days to act on the bill.If he signs the bill, or fails to any take action, then the bill will automatically become law and be effective on July 1, 2021. The unanimity with which it was passed also increases the likelihood that the Bill will become law. It was approved 40 to 0 by the Florida Senate and 115 to 0 by the Florida House of Representatives. Thus, even if Governor DeSantis vetoes the bill, there would likely be the required two-thirds super majority in each house to override the veto.
Take Away
If passed, the bill creates litigation risk and places additional compliance burdens on covered and exempt entities. Companies in Florida should be prepared to take proactive risk mitigation strategies including having appropriate consent processes in place and reviewing marketing policies. If you have questions about this legislation or would like to evaluate your marketing procedures, please contact Greenspoon Marder’s Regulatory Compliance practice group. Our well-rounded group of professionals includes nationally recognized attorneys, seasoned legislators, and experienced lobbyists, as well as a uniquely dedicated paralegal group to ensure personalized client service.
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