This past April, the Florida legislature passed an amendment to Florida’s version of the Telephone Consumer Protection Act, CS/SB 1120. Two days before the amendment’s effective date of July 1, 2021, Governor Ron DeSantis signed the amendment into law, giving companies little time to prepare.
The amendment imposes a new requirement on making telephonic sales calls using an automated system. Before making such calls, the caller must obtain “prior written consent” from the person to be called. “Prior express written consent” consists of (1) a written agreement; (2) the signature and telephone number of the called party; (3) authorization for telephonic sales calls using an automatic system; and (4) a clear disclosure that the called party is not required to directly or indirectly sign the written agreement as a condition of purchasing any property, goods, or services.
This is a change from the prior version of this law, which did not prohibit the use of an automated telephone dialing system with live messages if (1) the calls were made solely in response to calls initiated by the called party; (2) the numbers called were screened to exclude anyone who is on the Florida Department of Agriculture and Consumer Services’ “no sales solicitation calls” list; or (3) the calls made concerned goods or services previously ordered or purchased by the called party.
Consumers aggrieved by violations of this section now have a private right of action against the violator: Consumers may seek an injunction and recover actual damages or statutory damages of $500 per call (whichever is greater). Courts may award up to treble damages for willful or knowing violations.
The amendment also imposes limits on the timing, number, and technology of telephonic sales calls — whether through automated dialing, recorded messages, or live messages. Telephonic sales calls can be made only from 8 a.m. to 8 p.m. local time in the called person’s time zone. The law also limits to three the number of times a seller may make telephonic sales calls to any person regarding the same subject matter per 24-hour period. This rule applies regardless of the phone number used to make the call. Additionally, commercial solicitation phone calls may not use technology that deliberately displays a different caller identification number than the number from which the call originated. Violating this section is a misdemeanor.
Finally, the law creates a rebuttable presumption that telephonic sales calls made to any Florida area code is made to a Florida residence or to a person in the state at the time of the call.
The amendment contains several exemptions, including an exemption for a “supervised financial institution or parent, subsidiary, or affiliate thereof operating within the scope of supervised activity.”
The law will likely be reviewed by courts in future consumer lawsuits. We will continue to monitor new developments on its impact and scope.