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,” the Florida Telephone Solicitation Act (FTSA), can lead to expensive individual and class action lawsuits. The penalties can be severe. Violations of the FTSA may require businesses to pay the greater of actual damages or $500 for each call or text. If the violation is willful or knowing, the court may increase the award to as much as three times that amount. 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), prerecorded messages, SMS texts, and fax machines. The law:

• Restricts telemarketing calls to residential subscribers before 8 a.m. or after 9 p.m. local time;
• Requires businesses to maintain internal do not call (DNC) lists and honor the National DNC Registry;
• Mandates caller identification; and
• Restricts calls using an ATDS or prerecorded messages without the called party’s prior express consent, and requires prior express written consent for telemarketing calls and texts made with an ATDS or a prerecorded voice.

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. Businesses can unknowingly create TCPA exposure by relying on marketing vendors whose technology or practices do not comply. Always verify that your vendors’ systems comply with TCPA and FTSA requirements, and make sure your vendor agreements include representations and warranties of compliance and indemnity protection if the vendor fails to comply. 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 its own rules for marketing calls and texts to Florida consumers. Florida lawmakers significantly amended the FTSA in 2021 and again in 2023. The FTSA gives consumers the right to sue businesses directly.

Other key provisions include:

• Prior Express Written Consent: Before making unsolicited telephonic sales calls that use an automated system for the selection and dialing of telephone numbers or a recorded message, businesses must get the called party’s prior express written consent, including:
  • The called party’s signature (an electronic signature, or an act such as checking a consent box, can qualify),
  • The telephone number the called party authorizes for the calls,
  • Clear authorization for the specific business to contact the called party using an automated system, recorded message, or prerecorded voicemail, and
  • A clear and conspicuous disclosure that signing authorizes those calls and that consent is not a condition of purchase.
• Exemptions: Calls made in response to the consumer’s express request, primarily in connection with an existing debt or contract that has not yet been paid or performed, or to a person with a prior or existing business relationship are not “unsolicited” sales calls under the statute.
• Private Right of Action: Consumers can sue for FTSA violations and seek injunctions and damages. Courts may increase damages up to three times for willful or knowing violations.
• Caller ID Requirements: Anyone making telephonic sales calls must transmit the originating telephone number (and the caller’s name, when the carrier makes it available) to caller ID services, the displayed number must accept return calls and connect to the caller or seller, and callers may not intentionally alter their voice to conceal their identity in order to defraud, confuse, or injure the recipient.

Florida’s separate Telemarketing Act adds limits for commercial telephone sellers: no solicitation calls before 8 a.m. or after 8 p.m. in the called person’s time zone, no more than three calls to the same person on the same subject within 24 hours regardless of the number used, and no displaying a different caller ID number to conceal the caller’s identity.

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

For non-compliant businesses, the risks are serious. Class actions can result in millions in liability, and a single unsolicited robocall or autodialed text may be enough to support a TCPA claim. Under the FTSA, the prevailing party, plaintiff or defendant, is entitled to reasonable attorney’s fees and costs.

The Florida Legislature changed the FTSA again in 2023. Among other things, it:

• Limited the automated-call consent requirement to unsolicited telephonic sales calls;
• Narrowed the autodialer language to cover “an automated system for the selection and dialing of telephone numbers”;
• Required consumers to reply “STOP” before suing for damages over text messages, and gave businesses 15 days to stop texting after that notice; and
• Applied those changes to suits filed on or after May 25, 2023, and to putative class actions not yet certified by that date.

Safe Harbor: The Reassigned Numbers Database (RND)

One important tool SMBs can use to reduce risk under the TCPA is the Reassigned Numbers Database. It shows whether a telephone number has been permanently disconnected, and so may now belong to someone new, since the date you obtained consent. Businesses should use it to scrub their contact lists.

Businesses sending recurring messages should check the RND regularly. FCC rules provide a safe harbor: if you queried the database, received a “no” response showing the number had not been permanently disconnected since your consent date, and still reached a new subscriber because the database was wrong, you are not liable under the TCPA’s autodialer and prerecorded-voice consent rules for that call, but you bear the burden of proving it. The safe harbor does not cover Do Not Call claims or the FTSA.

Compliance Best Practices for SMBs

To mitigate risk and ensure compliance, businesses should:

• 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.
• Honor Opt-Outs Promptly: Set internal procedures to act quickly on opt-outs. Messages sent after the deadlines below can trigger a lawsuit. Include clear “STOP” language in marketing texts. FCC rules require honoring a request to revoke consent within a reasonable time and no later than 10 business days, and under the FTSA a business that keeps texting 15 days after a “STOP” reply can be sued for damages.
• Maintain Internal Do Not Call Lists: Scrub lists against your internal list, the National DNC Registry (using a version no more than 31 days old), and Florida’s “no sales solicitation calls” list. Document the process and designate responsibility for managing it. These steps also support the Do Not Call safe harbor (see “TCPA Litigation: Understanding the Safe Harbor Defense”).
• Limit Call Frequency and Timing: Follow time restrictions and daily limits. Be mindful of the time zone where the call recipient resides.
• Know Your Dialing Technology: Ask vendors how their systems select and dial numbers. Under the TCPA, an ATDS is equipment with the capacity to store or produce numbers using a random or sequential number generator and to dial them. Under the FTSA, the question is whether the system automates the selection and dialing of numbers.
• 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.