How SMBs Can Protect Themselves From Costly Telemarketing and Robocall Lawsuits 

For Florida SMBs, an unsolicited marketing text or call can turn into a six-figure lawsuit overnight. If your small or mid-sized business (SMB) uses phone calls, voicemails, or SMS text messages to reach potential or existing customers, you could be exposed to costly lawsuits under federal and Florida-specific telemarketing laws. While using this technology to prospect or follow up may be appealing, non-compliance with the federal Telephone Consumer Protection Act (TCPA) and Florida’s “Mini-TCPA” or Florida Telephone Solicitation Act (FTSA) can lead to expensive individual and class action lawsuits. The penalties can be severe. Violations of the Mini-TCPA may require businesses to pay the greater of actual damages or $500 per violation. If the violation is willful or knowing, that amount increases to the greater of triple damages or $1,500 per violation. This article outlines the laws you need to know, best practices to reduce risk, and steps you can take to protect your business. 

What Is the TCPA?

The TCPA is a federal law restricting unsolicited telemarketing. It governs the use of automatic telephone dialing systems (ATDS), pre recorded messages, SMS texts, and fax machines. The law: 

• Restricts calls to residential and mobile numbers during early morning and late-night hours; 
• Requires businesses to maintain internal do not call (DNC) lists and honor the National DNC Registry; 
• Mandates caller identification; and 
• Prohibits the use of ATDS or prerecorded messages without prior express written consent 

Because the definition of an ATDS has been heavily litigated, businesses should exercise caution when using any technology or when working with third-party vendors that dial numbers without human involvement. Many small and medium-sized businesses unknowingly trigger TCPA violations by relying on marketing vendors that use prohibited technologies. Always verify that your vendors’ systems comply with TCPA and FTSA requirements. [NTD: we should include the most important ones here “such as, 1)…., 2)….. we should also recommend they ensure that the vendor’s agreements include reps and warranties and indemnity protection for the vendors’ failure to comply with these.] Use systems that require a person to locate and manually dial the consumer’s number. (See: “TCPA Litigation: Is Click-to-Dial a Violation?” for more.) 

Florida’s Mini-TCPA: The FTSA 

Florida’s FTSA builds on the TCPA with stricter rules for marketing calls and texts to Florida residents. Florida lawmakers significantly amended the FTSA in 2021 (leading to a spike in lawsuits) and again in 2023 to clarify provisions and reduce abuse. It gives consumers the right to sue businesses directly. NTD: clarify if this was a 21’ or 23’ change by noting, “Among the amendments in 2021/23 was granting consumers….]. 

Other key provisions include: 

1. Prior Express Written Consent: Before using automated systems, businesses must get written consent, including: 

• The recipient’s signature (electronic is acceptable), 
• Authorization for contact by automated systems, and 
• Clear disclosure that consent is not a condition of purchase. 

2. Removal of Key Exemptions: The revised law eliminated exemptions for calls responding to inquiries, regarding prior purchases, or to numbers screened against Florida’s no sales solicitation list. 
3. Private Right of Action: Consumers can sue for FTSA violations and seek injunctions and damages. Courts may triple damages for willful violations. 
4. Time and Frequency Restrictions: Marketing calls may only be made from 8 a.m. to 8 p.m., with no more than three calls or texts to the same recipient (even across different numbers) per 24-hour period on the same issue. Companies must accommodate both of Florida’s time zones in adhering to the restrictions. 
5. Caller ID Spoofing Prohibited: Businesses cannot alter caller ID info to mislead or obscure identity. 

What’s at Stake: Class Actions and Millions in Potential Liability 

For non-compliant businesses, the risks are serious. Class actions are common and can result in millions in liability. A single unsolicited message may be enough to trigger a lawsuit. Prevailing plaintiffs can also recover attorneys’ fees and court costs. 

The 2021 amendments caused a sharp rise in lawsuits, especially targeting promotional texts. For instance, a Florida HVAC company recently faced a $250,000 settlement after sending unsolicited promotional texts to customers without proper consent. The Florida Legislature responded in 2023 by: 

• Expanding “telephonic sales calls” to include texts and voicemails; 
• Validating electronic consent (e.g., online checkboxes); and 
• Requiring a “STOP” option in texts and providing a 15-day opt-out compliance window. 

Safe Harbor: The National Reassigned Number Database (RND) 

One important tool SMBs can use to reduce risk under the TCPA is the National Reassigned Number Database. To limit TCPA liability, businesses should use the RND, which shows whether a number has been reassigned since consent was given, to scrub their contact lists. 

The RND database search returns: 

• Yes: Number has been reassigned — do not contact. 
• No: Number has not been reassigned — safe to contact. 
• No Data: Status unclear — proceed with caution. 

Businesses using recurring messages should regularly check the RND. It offers a safe harbor if a business can show it received a “No” response before contacting a reassigned number. (See: “TCPA Risk Avoidance Tool: The National Reassigned Numbers Database.” and “TCPA Litigation: Understanding the Safe Harbor Defense | Jimerson Birr”) 

Compliance Best Practices for SMBs 

To mitigate risk and ensure compliance, businesses should: 

1. Get Clear Written Consent: Ensure consent forms include all required language. Use electronic checkboxes and signatures where appropriate. See our blog titled, TCPA and FTSA Consent Checklist, for more information on what consent disclaimers should entail.
2. Honor Opt-Outs Promptly: Set internal procedures to act quickly on opt-outs. Even one post-opt-out message can trigger a lawsuit. Include clear “STOP” language in marketing texts and ensure opt-out requests are processed within the legally required 15-day window. 
3. Maintain Internal Do Not Call Lists: Regularly scrub lists against internal and national DNC registries. Document the process and designate responsibility for managing it. 
4. Limit Call Frequency and Timing: Follow time restrictions and daily limits. Be mindful of the time zone where the call recipient resides. 
5. Use Human Intervention: Systems that rely on the intervention of live agents are less likely to be considered ATDS. 
6. Train Staff and Document Procedures: Provide regular training and retraining. Written procedures and employee certifications show good-faith compliance.  

Remember: under both the TCPA and FTSA, your business can be held liable for violations committed by your marketing vendors or agents. Always verify their compliance as carefully as you verify your own. 

Conclusion 

Florida’s telemarketing laws are strict, and even unintentional violations can financially devastate SMBs. But with the right policies, consent procedures, and training, compliance is achievable.  Our attorneys can help you review your outreach practices, refine consent forms, and implement safeguards. A proactive legal strategy can reduce your risk and keep your marketing efforts compliant and effective. Contact us to schedule a consultation.