Florida recently enacted a bill that updates the Florida Consumer Protection Law and the Florida Telemarketing Act. The bill was unanimously passed by the state legislature and creates what is essentially a stricter version of the federal law known as the Telephone Consumer Protection Act (TCPA). CS/SB 1120, also known as Florida's "Mini-TCPA," represents a serious risk for every consumer-facing entity that does business in Florida and interacts with existing and potential customers through telemarketing, text messaging and direct to voicemail transmissions.
Not only does this Mini-TCPA introduce a private right of action - paving the way for lawsuits under the statute's more expansive definition of what constitutes an auto-dialer - the bill also creates a rebuttal presumption that a call placed to a Florida area code is made to a Florida resident (or to a person located in Florida at the time of the call) and requires prior express written consent in nearly every situation. The bill was signed by Florida Governor Ron DeSantis on June 30, 2021 and took effect on July 1, 2021. The first class action complaint alleging a violation of the law was filed only 13 days later, on July 14, 2021.
Thus, now is the time for businesses to evaluate these changes and be prepared to update and adjust marketing campaigns and customer outreach to minimize exposure.
The key changes in this legislation include:
- Restricting the use of automated technology and pre-recorded messages by requiring prior express written consent before placing a call or sending a text message. Prior express written consent will now be required even when calls or texts are made in response to those initiated by a potential or existing customer, including customer inquiries concerning goods or services previously purchased by the customer. In other words, responding to a customer's query or checking up on their satisfaction with a purchase, if done using an automated system, will cost you.
- Expanding the definition of an auto-dialer to one broader than the federal TCPA and including "an automated system for the selection or dialing of telephone numbers or the playing of a recorded message." This broad definition is untested, and will likely result in significant and costly litigation for businesses caught up in the uncertainty.
- Creating a rebuttal presumption that a sales call made to a Florida area code is made either to a Florida resident or to a person in Florida the time of the call or text; potentially increasing the pool of potential plaintiffs.
- Creating a private right of action that can give rise to significant liability. A prevailing plaintiff may obtain an injunction, recover the greater of their actual money damages or $500, plus attorney's fees and costs. A court may increase damages up to three times, or $1,500, for a willing or knowing violation.
- Reducing legal calling times from 8 a.m.-9 p.m. to 8 a.m.-8p.m., local time.
- Capping the number of calling attempts to three attempts during a 24 hour period.
The first litigation brought pursuant to this new legislation was filed only 13 days after the law took effect and more cases are inevitable. TCPA and Mini-TCPA lawsuits pose a public relations challenge and can cause significant reputational damage to a company named as a defendant in a lawsuit. They also may result in large damage awards, with no cap on damages and the potential for substantial attorney's fees. These realities likely will result in the proliferation of these lawsuits throughout Florida.
Buchanan's consumer protection attorneys are available to assist you as your business navigates the nuances of Florida's Mini-TCPA. Now is the time to review marketing practices, proactively address and investigate issues that may pose a significant risk, and develop best practices. Preventing litigation is much more cost efficient than defending a lawsuit. Nonetheless, our attorneys are also at the ready in the event that your business finds itself as the target of litigation.
This article, originally published June 10, 2021, was revised and updated July 20, 2021.
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