Florida’s New Mini TCPA: Changes to the Florida Telemarketing Act and the Florida Do Not Call Act
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This year, through Senate Bill 1120 (SB 1120), Florida adopted its own version of the Telephone Consumer Protection Act, which has been referred to as Florida’s Mini-TCPA. Florida’s Mini-TCPA has striking similarities to the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et. seq. Florida’s expansion of its telemarketing laws harmonizes Florida law with the federal TCPA by creating a private cause of action.
The Florida legislature has made several key changes to the Florida Do Not Call Act and the Florida Telemarketing Act. See §501.059, Fla. Stat. (the Florida Do Not Call Act) and §501.616, Fla. Stat. (part of the Florida Telemarketing Act). This article will provide a general overview of the key changes to the laws.
Changes to the Florida Do Not Call Act (Section 501.059)
The new law has made several changes to Section 501.059, Florida Statutes. There are three major changes to the Florida Do Not Call Act in which businesses should be aware, namely: 1) the removal of existing call exemptions; 2) the addition of a prior written consent requirement for marketing calls using an automated system; and 3) affording citizens a private right of action.
1) Deletion of Existing Call Exemptions
Under the prior law, several exemptions were carved out for automated marketing calls. These exemptions were:
i) The call was made in response to a call initiated by the called party;
ii) The number called had been screened to exclude numbers on the Department’s “no sales solicitation calls” listing; and
iii) The call concerned goods or services previously purchased by the called party
With the adoption of SB 1120, these exemptions were removed. The removal of these exemptions creates a need for businesses to review their automated call systems and policies to ensure compliance with the new law.
2) Express Written Consent Requirement
In addition to eliminating the above exemptions, Section 501.059(1)(g) now requires “prior express written consent” for all marketing calls made with an automated system for the selection or dialing of numbers. Section 501.059(1)(g) defines “prior express written consent” as follows:
• A written agreement that bears the signature of the called party;
• Clearly authorizes the person making or allowing the call, text message or voicemail to deliver it using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message;
• Includes the number authorized to be contacted; and
• Includes a clear and conspicuous disclosure informing the called party that they are authorizing the call to be made using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message and informing the called party that they are not required to sign the agreement as a condition of purchasing any property, goods, or services
§501.059(1)(g), Fla. Stat. (2021). This new addition to the Florida Do Not Call Act is significant for Florida businesses, especially those that use or authorize automated systems for prospecting and follow-up calls.
3) Creation of a Private Right of Action
Section 501.059(10) also now provides a private right of action for enforcement of Section 501.059. This means that an affected party can bring an action to enjoin the violation and recover damages. The damages available under Section 501.059(10) are either the party’s actual damages or $500 per violation, whichever is greater. However, Section 501.059(10) also authorizes additional damages for willful and knowing violations in the form of treble damages (i.e., three-times actual damages or three-times $500, whichever is greater).
Section 501.059(10) also includes a prevailing party attorneys’ fees provision, which allows the prevailing party to recover their reasonable attorneys’ fees and costs. The addition of a private right of action will undoubtedly attract consumer lawyers and increase the number of lawsuits filed under the Florida Do Not Call Act.
Changes to the Florida Telemarketing Act (Section 501.616)
In addition to the revisions to the Florida Do Not Call Act, SB 1120 also made important revisions to Section 501.616 of the Florida Telemarketing Act. The following are three of the most important changes to Section 501.616, Florida Statutes:
• Commercial calls are limited to the time period of 8 a.m. to 8 p.m. local time in the consumer’s location. Previously, calls could be made until 9 p.m. This is extremely important as Florida straddles both the eastern and central time zones, making it imperative that businesses are aware of which time zone the consumer is located. §501.616(6)(a), Fla. Stat. (2021).
• Commercial calls are limited to no more than three calls to a person in a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the call. §501.616(6)(b), Fla. Stat. (2021).
• Barring the use of technology that deliberately displays a different caller identification number than the number the call is originating from to conceal the caller’s true identity. §501.616(7)(b), Fla. Stat. (2021)
The new revisions to the Florida Telemarketing Act and the Florida Do Not Call Act provides robust protections to consumers from unwanted communications. It also forces many businesses to revisit how they conduct their marketing and consumer communications. These changes should not be taken lightly. Florida businesses should conduct a thorough evaluation of their telemarketing policies and procedures to ensure compliance with these new revisions to the Florida Telemarketing Act and Florida Do Not Call Act.