Posted by Chris Alarie on Mon, 05/24/2021 - 14:06
In late April, the Florida legislature passed a new telemarketing bill. The bill, CS/SB 1120, amends the state’s existing telemarketing law, the Florida Telemarketing Act, transforming it from a fairly standard piece of state-level Do Not Call (DNC) legislation to something more akin to a miniature Telephone Consumer Protection Act (TCPA).
The most notable provisions of the bill, as highlighted in the State Senate’s summary, are as follows:
- A lack of an explicit definition of an autodialer, opting instead for the broad, effective definition of “automated system[s] for the selection or dialing of telephone numbers or the playing of a recorded message”.
- Consent provisions for autodialers and robocalls that require that “all sales telephone calls, text messages, and direct-to-voicemail transmissions to have the receiving consumer’s prior express written consent if the call will be made using an automated machine to dial the recipient’s phone number, or will play a recorded message upon connection with the recipient.”
- A private right of action that allows an “aggrieved party may petition a court to enjoin the violating party.”
- Penalties of up to $500-per-violation that may be trebled to up to $1,500-per-violation for willful or knowing violations.
- A ban on the use of spoofed numbers by telemarketers, which may incur criminal penalties of a second-degree misdemeanor.
- A calling time restriction of 8 am to 8 pm in the consumer’s time zone.
- A restriction on calling the same person about the same subject matter more than 3 times in any 24-hour period.
Another particularly interesting feature of the law is “a rebuttable presumption that a sales call made to a Florida area code is made either to a Florida resident or to a person in this state at the time of the call.” This could produce some litigatory complications in a world in which cell phones allow people to have phone numbers whose area codes do not match their actual state of residence.
The bill was passed unanimously by both houses of Florida’s legislature. Florida Governor Ron DeSantis has not announced that he has signed it into law. However, according to the state's legislative rules, it's possible that it could become law without his signature. The Governor has 15 days to take action after receiving the law and if he takes no action, it takes effect on July 1, 2021. If he vetoes the bill, the legislature can override it with 2/3 majorities in both house—presumably not a tall task for a bill that passed unanimously. We will continue to monitor it to be sure but it seems likely that the law will take effect by one means or another on July 1.