On April 28, 2021, both houses of the Florida legislature unanimously voted to amend Florida’s Telemarketing Act with CS/SB 1120 (the “Act”). The Act was presented to Florida Governor Ron Desantis on June 28, and approved by the Governor on June 29, 2021. The Act became law effective July 1, 2021. The Act follows a United States Supreme Court decision in Facebook, which significantly narrowed the scope of the Telephone Consumer Protection Act. The Supreme Court’s decision in Facebook reduced the risk for any companies that used autodialing technology which did not randomly or sequentially generate telephone numbers. The decision separated technology which automatically dials stored numbers – a common business practice, and technologies which arbitrarily picked random numbers to dial and advertise too; the Supreme Court held the former is permissible under TCPA, while the latter is not. However, the Act does not distinguish between regular automated technology and random or sequential generating technology, meaning that the narrowed scope of the TCPA will no longer apply in Florida.

SB 1120 AT A GLANCE

– Effective July 1, 2021.

– Companies are prohibited from making sales “calls” through text, call, or voicemail using an “automated system for selection and dialing of telephone numbers.”

– Excludes (1) calls in response to consumer-initiated calls; (2) numbers which are unlisted or have been scrubbed against the state Do Not Call list; (3) calls related to goods or services previously purchased or ordered; or (4) calls made after the company obtains “prior express written consent” from the called party.

– Narrows the permissible times for telemarking calls to 8 AM – 8 PM.

– No more than three commercial solicitations within 24 hours about the same matter, regardless of the number used to place the call.

Notably, the Amendment does not distinguish between different technology solutions for reaching out to consumers. The Amendment prohibits companies from making reaching consumers through telephone calls, text messages, or voicemail with any technology that automatically selects and dials telephone numbers. This means that, even with human intervention, there is some risk in using automated technology to reach consumers without falling into one of the excluded categories.

The Amendment prohibits companies from making more than 3 commercial solicitations within a 24 hour period, regardless of the number used to place the call. This means that, even if a business uses different phone numbers, it cannot call the same consumer about the same issues more than 3 times in any 24 hours period.

The Amendment narrows the permissible window for calls to hours between 8 AM – 8 PM.

The Amendment prohibits companies from using any technology to deliberately conceal the identity of the caller. Organizations discontinue engaging in activities that may be considered deceptive to increase the chances that a consumer will answer the phone. While this language may be open to future interpretation by regulators or courts to determine what types of activities and technologies “deliberately” attempt to “conceal the identity” of the caller, businesses should review their current marketing practices and discontinue any such activities that may be construed to attempt to deliberately hide the identity of the caller in any manner, including by deliberately modifying or obscuring the phone number the name of the caller. .

Exclusions

Companies will not face penalties if they are responding to consumer initiated calls. Organizations will not be liable for consumer-initiated calls, even if the organization uses an automated “call back” system to contact the consumer.

Companies will not face penalties if the number called has been screened to exclude numbers on the “no sales solicitation calls” list maintained by the Florida Department of Agriculture and Consumer Services or any unlisted telephone number. The list is available here.

Companies will not face penalties if they obtain prior written consent. Before the U.S. Supreme Court decision in Facebook, we always recommended obtaining prior written consent. With this new Amendment, the relaxed technological definition is no longer applicable, and we recommend companies get prior written consent before contacting consumers through text, call, or voicemail.

Penalties

The Act provides a private right of action for Customers who believe businesses have violated the Florida Telemarketing Act, as amended by the Act. Customers making complaints for violations of the Act will be able to recover the greater of $500 per violation, or treble damages for any damages suffered.

Steps for Businesses

Companies should conduct a review of its practices in regards to collecting consumer phone numbers, and in how the organization uses those numbers. They should also review their use of autodialing technologies and their user base to ensure that they are compliant with these new amended changes. We recommend that companies adopt a multi-faceted approach where the business discloses how the company will use a consumer’s phone number, and concurrently obtains the required express written consent at the point of collection. This type of disclosure can be, and often is, provided in a Terms of Use, while consent may be obtained through the use of checkboxes or other permitted methods for electronic or wet signatures.

For more information about this new Florida Telemarketing Act, please contact one of the authors listed below or any of the Partner or Senior Counsel core members of Foley’s cybersecurity practice.