On June 29, 2021, Florida Governor Ron DeSantis signed CS for SB 1120 into law, which amends and significantly expands Florida’s existing telemarketing laws. Specifically, the law amends both the Florida Do Not Call Act and the Florida Telemarketing Act. These changes could pose significant challenges to businesses that make calls to Florida residents or Florida area codes. While some of the amendments track the federal Telephone Consumer Protection Act (TCPA), Florida law is now broader in critical ways, including the equipment it regulates.
Under the amended Florida Do Not Call Act, businesses are now required to obtain prior express written consent for all “telephonic sales calls” made using an “automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” While the phrase “automated system for the selection or dialing of telephone numbers” is not further defined, it appears to be significantly broader than the TCPA’s definition of an “automatic telephone dialing system.” The requirements for prior express written consent closely track the TCPA.
The amended law also provides a private right of action for any violation of the Florida Do Not Call Act, which covers, among other things, automated telephonic sales calls made without the prior express consent of the called party, calls to subscribers on Florida’s do-not-call list, calls to persons who previously communicated they did not wish to be called, calls that fail to identify the telephone solicitor, and calls that fail to transmit the originating telephone number or that intentionally alter the voice of the caller. Similar to the TCPA, the statute provides for actual damages or $500 (whichever is greater) and up to treble damages for knowing or willful violations. The statute also creates a rebuttable presumption that calls placed to Florida area codes are made to Florida residents or to a person in Florida at the time of the call.
Notably, the law also removed certain exemptions for autodialed live calls, including calls made in response to calls initiated by the person who is being called, calls made to numbers scrubbed against Florida’s do-not-call list or scrubbed to exclude unlisted telephone numbers, and calls made concerning goods or services previously ordered or purchased.
The amendments to the Florida Telemarketing Act create additional calling restrictions that differ from the TCPA. Telemarketers are now prohibited from making more than three calls to a person on the same subject matter or issue in a 24-hour period. The TCPA contains no equivalent restriction. The amendments also further restrict the permissible calling times to between 8 a.m. and 8 p.m. in the called person’s time zone. These permissible calling times are more restrictive than the TCPA, which permits calls between 8 a.m. and 9 p.m.
The law also prohibits the use of technology that deliberately displays a different caller identification number to conceal the identity of the caller. Violations of this provision are considered a misdemeanor of the second degree.
And while the Florida Telemarketing Act contains numerous exemptions, these exemptions do not apply to the prior express consent requirements, call frequency limits and permissible call time restrictions mentioned above.
Businesses that make calls to Florida residents or Florida area codes should review their compliance programs to ensure compliance with Florida law. We expect other states may soon follow suit and pass similar telemarketing legislation.