Restrictions on telemarketing to Florida residents are about to get tighter. Just a few months ago, in Facebook, Inc. v. Duguid, 592 U.S. ___ (2021), the U.S. Supreme Court ruled that for the purposes of the Telephone Consumer Protection Act (TCPA) an automatic telephone dialing system (ATDS) must use a random or sequential number generator to store or produce numbers to call. Many commentators expected the flood of TCPA litigation asserting ATDS claims to dwindle in the wake of Duguid. Effective today (July 1, 2021), however, Florida has a new law — Senate Bill 1120 or the Florida Robocall Bill — containing tighter restrictions on telemarketing calls and texts to Florida residents, including those made with automated technology. As a result, companies making telemarketing calls and texts to Floridians need to be familiar with these new restrictions to avoid potential penalties of $500 to $1,500 per violative call or text.
THE FLORIDA DO NOT CALL ACT
Under the Florida Do Not Call Act, prior express written consent of the called party is now required for calls or text messages to Florida residents placed using an “automated system” or using a prerecorded call. Fla. Stat. § 501.059(8)(a). Unlike the federal definition of an ATDS under the TCPA, in Florida, an automated system can be a system that either dials or selects a number for calling. Specifically, an automated system is defined as one that is used “for the selection or dialing of telephone numbers” or the “playing of a recorded message.” Fla. Stat. § 501.059(1)(g)(1).
The other new component of the law mirrors the TCPA: it creates a private cause of action that allows individuals to get $500 per violation of Florida’s “automated system” and prerecorded call prohibitions, which can be tripled to $1,500 for willful or knowing violations. Fla. Stat. § 501.059(10).
The combination of these changes will likely be impactful. Under the Duguid, an ATDS for the purposes of the TCPA is “a device [with] the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Facebook, Inc. v. Duguid, 592 U.S. ___ (2021). The Florida act’s “automated system,” though, is broader than the TCPA’s ATDS, because it is not limited to just systems that store or produce a phone number using a random or sequential generator — it includes systems that dial numbers or selects numbers in an automated manner. This difference, when combined with the adoption of the private cause of action for damages, could lead to an uptick in lawsuits in Florida challenging telemarketing calls to Florida residents under the new law. And with respect to the definition of Florida residents, the new law creates a rebuttable presumption that a phone number with a Florida area code belongs to a Florida resident. Fla. Stat. § 501.059(8)(d).
Given the potential high stakes of class actions and lawsuits under this statute, it is more important that companies require prior express written consent (PEWC) capture before calling or texting a Florida telephone number or Florida resident.
THE FLORIDA TELEMARKETING ACT
The new law also includes amendments to the Florida Telemarketing Act that will further restrict when and how many times a company can make telemarketing calls to Florida residents. First, the amendments reduce the hours during which a company can make a commercial solicitation call. The current hours, which do not allow unsolicited telemarketing calls between 9:00 pm to 8:00 am, will become 8:00 pm to 8:00 am under the revised statute. Fla. Stat. § 501.616(6)(a). Second, the amendments limit the number of unsolicited telemarketing to no more than three calls to one person in 24 hours, regardless of any particular phone number called. Fla. Stat. § 501.616(6)(b).
But the restrictions on when and how many times a company can call are not the only major changes to the Florida Telemarketing Act. In addition, the amendments also add an anti-spoofing provision, punishable as a misdemeanor, that prohibits companies from using “technology that deliberately displays a different caller identification number than the number the call is originating from to conceal the true identity of the caller.” Fla. Stat. § 501.616(7)(b).
These changes demonstrate Florida’s commitment to limiting unwanted calls to Florida residents and make it harder for businesses to contact their customers.
COMPLIANCE IS KEY
To put themselves in the best position to avoid litigation, companies should implement procedures that comply with the new law for telemarketing calls and texts to Florida residents. This means treating phone numbers with Florida area codes as if they belong to Florida residents in the absence of clear evidence that the phone number belongs to someone who resides in another state. For callers with a Florida area code or who have otherwise been identified as residing in Florida, companies should follow best practices and limit calling and texting to only during the permitted time frame of 8:00 am – 8:00 pm, up to three times per day to the same individual, and obtain prior express written consent (PEWC) in advance of calling or texting. Implementing procedures to ensure compliance with these provisions will mitigate the risks of litigation under the Florida statutes.