Florida’s new “mini” Telephone Consumer Protection Act takes effect

On July 1, 2021, the Florida Governor signed legislation imposing new restrictions on telemarketing calls. The amendments to the Florida Consumer Protection Law and Florida Telemarketing Law, which are now in effect, create a new private right of action and track some elements of the federal Telephone Consumer Protection Act (TCPA) while going beyond the federal law in some areas.

Scope

The federal TCPA imposes a number of requirements on autodialed calls and also imposes certain requirements on calls made using a prerecorded or artificial voice. Regarding autodialed calls, the federal TCPA defines “automatic telephone dialing system” (“ATDS” or “autodialers”) as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Recently, in Facebook, Inc. v. Duguid, the U.S. Supreme Court clarified that an autodialer under the TCPA must have the capacity either to store or to produce a telephone number using a random or sequential number generator. Our blog post on the implications of the Facebook decision can be found here.

The amended Florida law uses different language. The Florida mini-TCPA imposes new obligations on callers that use “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.”

New Requirements

The Florida mini-TCPA requires callers to obtain prior express written consent before placing a “telephonic sales call” using an autodialer. The law defines a telephonic sales call as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”

Under Florida law, prior express written consent must include the signature of the called party, clear authorization for the placement of a call, text, or voicemail using an autodialer, the authorized number, and clear and conspicuous disclosures by the caller of the intent to place automated communications and the called party’s right to withhold consent.

New Private Right of Action

The mini-TCPA creates a private right of action for violations of the “Telephone solicitation” section of the Florida Consumer Protection Law, including using an autodialer to call a consumer without prior express written consent; a caller’s failure to properly identify themselves in a call; a caller’s failure to follow do-not-call requests or avoid calls to numbers on the Florida do-not-call list; and a caller’s failure to abide the anti-spoofing rules.

Plaintiffs can seek an injunction or recovery for their actual money damages or $500, whichever is greater, with the possibility of damages up to $1,500 for willing or knowing violations. They can also recover attorney’s fees.

Reduced Calling Window for Marketing Calls

Under the new law, commercial telephone solicitations must be made between the hours of 8:00 a.m. and 8:00 p.m. Callers should note this time change and the fact that Florida has two time zones.

Presumption of Calling Florida Residents

The law includes a rebuttable presumption that a telephonic sales call made to any area code in Florida is made to a Florida resident or to a person in Florida at the time of the call.

 

Authored by Mark Brennan, Max Staloff, and Ambia Harper.

 

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