Florida Amends State Telemarketing Laws, Exceeds TCPA Restrictions

Effective July 1, 2021, Florida amended two of its telemarketing laws to expand liability for marketing calls and texts to consumer landlines and cell phones, similar to several prohibitions in the federal Telephone Consumer Protection Act (TCPA). Other changes are more restrictive than the TCPA. Telemarketing calls to businesses are not subject to the new laws; however, it may be difficult for a telemarketer to determine if a specific phone number belongs to a business or a consumer.

The amended Florida Do Not Call Act prohibits telephonic sales calls to consumers if the call involves “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message,” unless the caller has the consumer’s prior express written consent. Similar to the TCPA, the written consent agreement must:

  • Be signed by the called party (electronic or digital signatures recognized by state or federal law are acceptable);
  • Use language that “clearly authorizes” delivering a sales call, playing a recorded message, or transmitting a pre-recorded voicemail to the called party; and
  • Include the telephone number to which the call may be delivered.

The called party must also receive a clear and conspicuous disclosure that they are: (i) authorizing the call to be made using an automated system or recorded message; and (ii) are not required to sign the written agreement as a condition of purchasing any property, goods, or services.

Significantly, Florida’s definition of an automated system is broader than the TCPA’s definition of an “automatic telephone dialing system” (ATDS), which was narrowed by the Supreme Court’s recent Facebook decision, as discussed previously here. Accordingly, it is possible for a call not to be subject to the TCPA’s ATDS restrictions, but still be restricted under Florida law.

Under the amended Florida Telemarketing Act, it is also unlawful in Florida to (1) make commercial solicitations before 8 a.m. or after 8 p.m. in the called party’s time zone; (2) place more than three (3) commercial telephone calls from any number over a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the calls; and/or (3) use technology to conceal the identity of a caller through use of caller identification systems (“spoofing”). The 8 a.m. – 8 p.m. timeframe is shorter than the TCPA, which allows calls from 8 a.m. – 9 p.m.

Florida also eliminated exemptions for autodialed live calls: (i) placed in response to calls initiated by the called party; (ii) when placed to numbers scrubbed against the Florida Do Not Call registry or unlisted numbers; or (iii) if the call concerns goods or services previously purchased by the called party. Such calls are no longer exempt from the prior express written consent requirements.

Notably, the amended Florida Do Not Call Act creates a private right of action for individuals who have been called without consent. Individuals may sue offending telemarketers and recover actual damages, or $500 statutory damages per violation (whichever is greater), with a potential for treble damages for willful and knowing violations.

Businesses engaging in telemarketing activities in Florida should consult with counsel to make appropriate updates to their compliance programs.

For more information about the Florida Telemarketing Act or the Do Not Call Act, or the federal TCPA, please contact any attorney in our office.

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