Florida makes telemarketing more difficult and costly for violators

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On June 29, 2021, Florida Governor Ron DeSantis signed into law Senate Bill 1120 or the Florida Robocall Bill.  This bill not only expands Florida’s preexisting telemarketing restrictions, but also removes certain exceptions for previously lawful communications and allows parties to seek statutory damages through private litigation.  The law became effective on July 1, 2021.  Penalties for violations range from $500 to $1,500 per call or text in violation of the statute.

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).  Pursuant to the 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 much broader than the definition of an “automatic telephone dialing system” under the federal Telephone Consumer Protection Act (TCPA), recently clarified by the U.S. Supreme Court in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021).

The new law 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)).  Interestingly, the law does not address what happens when the Florida resident is on vacation in another state or staying temporarily in a second here in New England.

This private right of action is not limited to autodialer and recorded messages claims. Instead, 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. Fla. Stat. § 501.059(4), (5), (8)(c)–(d).

General telemarketing practices are also impacted by this 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 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.  However, they do allow for the private right of action.

These changes demonstrate Florida’s commitment to limiting unwanted calls to Florida residents and make it harder for businesses to contact their customers.  Florida is indeed providing a roadmap for other states to follow.  Will the New England states follow suit?  Only time will tell, but this law has more teeth and gives more rights than the federal TCPA.

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