United States: Florida Governor Signs "Mini-TCPA" Bill That Becomes Effective TODAY

Key Points

• On June 29, 2021, Florida's governor approved CS for SB 1120 (2021), enacting significant amendments to the state's telemarketing laws.
• Among other things, these amendments prohibit all sales calls, text messages, and direct to voicemail transmissions using “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message” without prior express written consent. Id. § 1 (amending Fla. Stat. § 501.059(8)).
• The amendments also create a private right of action for automated and prerecorded calls, and do-not-call violations, allowing the recovery of $500 to $1,500 in statutory damages and attorneys' fees. Id. (amending Fla. Stat. § 501.059(10)). 
• The amendments are set to become effective Today, July 1, 2021. Id. § 5.

On June 29, 2021, Florida Governor Ron DeSantis signed into law CS for SB 1120 (2021) (Florida Bill), a bill that some have referred to as Florida's “mini-TCPA.” This bill not only expands Florida's preexisting telemarketing restrictions, but also removes certain exceptions for previously lawful communications and permits called parties to seek statutory damages through private litigation. It is important for entities that engage in any form of telephone-based marketing — whether by call, text, or voicemail — to Florida residents or area codes to familiarize themselves with these new restrictions, which become effective July 1, 2021.

Even before the Florida Bill's enactment, Florida regulated by statute how and when a “telephone solicitor” may engage in “telephonic sales call[s],” including any “telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale …, or obtaining information that will or may be used for the direct solicitation of a sale.” Fla. Stat. § 501.059(1)(f)–(g). Most notably, under this statute it is unlawful to “make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.” § 501.059(8)(a). This restriction is markedly broader than the definition of an “automatic telephone dialing system” under the federal Telephone Consumer Protection Act (TCPA), as recently clarified by the U.S. Supreme Court in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).

The Florida Bill expands the scope of these preexisting restrictions in a number of ways. For example, the Florida Bill removes important exceptions to the autodialer/recorded message restriction, including exceptions for: (a) calls made in response to calls initiated by the called party; (b) calls made to numbers screened for unlisted numbers and against the Florida Department of Agriculture and Consumer Services “no sales solicitation calls” list; and (c) calls concerning goods or services previously purchased by the called party. CS for SB 1120 § 1 (deleting current Fla. Stat. § 501.059(8)(b)). Going forward, such communications may only be made with “the prior express written consent of the called party,” as evidenced in a signed (including electronically signed) writing in a form that complies with the new statute. Id. (amending Fla. Stat. § 501.059(1)(g)–(h), (8)(a)).

The Florida Bill also expands the enforcement of these provisions. Specifically, the Florida Bill creates a private right of action allowing a “called party aggrieved by a violation” to enjoin such violations and to recover $500 in statutory damages (up to $1,500 for willful or knowing violations) and possibly attorneys' fees. Id. (adding new Fla. Stat. § 501.059(10); moving former Fla. Stat. § 501.059(10) to § 501.059(11)). In applying this right of action, the bill creates a rebuttable presumption that calls made to a Florida area code is made to a Florida resident or to a person in Florida at the time of the call. CS for SB 1120 § 1 (amending Fla. Stat. § 501.059(8)(d)).

This private right of action is not limited to autodialer and recorded messages claims. Rather, it applies to any “violation” under § 501.059, including the statute's preexisting restrictions on calls to persons who either registered their phone number on the state's do-not-call list or made a do-not-call request directly to the caller; calls disguising the callers voice; and calls that fail to transmit the caller's or seller's originating and redialable telephone number. See id.; Fla. Stat. § 501.059(4), (5), (8)(c)–(d).

General telemarketing practices are also impacted by the Florida Bill. For example, the amendments reduce permitted telemarketing hours to between 8 a.m. and 8 p.m., instead of between 8 a.m. and 9 p.m., and prohibit a telemarketer from calling a given consumer regarding the same subject more than three times in a 24-hour period. CS for SB 1120 § 2 (amending Fla. Stat. § 501.616(6)). The amendments also make it unlawful to use technology that deliberately displays a different caller identification number. Id. (amending Fla. Stat. § 501.616(7)(b)). These restrictions apply even without the use of an autodialer or recorded message, but do not carry the same private right of action.

Notably, the Florida Bill “reenacted” Fla. Stat. § 501.604, which contains a set of enumerated exemptions to the Florida Telemarketing Act, Fla. Stat. §§ 501.601–501.626. Id. § 3. These enumerated exemptions, however, apply only to “[t]he provisions of this part [i.e., not § 501.059], except §§ 501.608 and 501.616(6)–(7).” Fla. Stat. § 501.604 (emphases added). As such, these enumerated exemptions do not apply to the provisions discussed above, including the autodialer/recorded message requirements, private right of action, and time-of-day and call-frequency limitations.

The Florida Bill represents a meaningful expansion of the state's telemarketing laws. With its broad definition of an automated system, detailed requirements for written consent, uncapped statutory damages, presumption of residency, and potential for attorneys' fees, Florida is poised to become a hotbed for proposed class actions based on telemarketing claims. We recommend that any person or entity engaging in telemarketing review their compliance program in light of the Florida telemarketing laws as amended.

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