Posted by Neal Kent on Thu, 07/15/2021 - 13:49
Florida’s new telemarketing regulations have created a more dangerous version of the Telephone Consumer Protection Act (TCPA) down in the sunshine state and it is already ensnaring marketers. The first class action complaint was filed under the new law and it confirms what analysts most feared: TCPA-like penalties and a private right of action combined with an even more lax definition of what constitutes a violation due to the law’s lack of an autodialer definition.
The source of the mini-TCPA’s danger is four-fold:
- A private right of action that allows individuals to file lawsuits and class actions
- TCPA-style penalties of $500-per-violation and $1,500-per-willful violation
- Consent-related restrictions on the use of automated systems
- A lack of an explicit definition of what constitutes an “automated system”
Indeed, the law says, “A person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party.” But given the use of the phrase "selecting or dialing" and with no further definition of what constitutes an automated system, the prohibition will apply to an even wider array of dialing technology than is contemplated by the SCOTUS decision in Facebook v. Duguid. It is entirely possible that court opinion will produce a de facto definition of "automated system" but there is no statutory definition.
These seem to be the circumstances underlying Cooper v. Batteries Plus, LLC, the first class action complaint filed under the new law. The plaintiff’s allegations that the defendant used an “automated system” are extremely bare: “Defendant utilized a computer software system that automatically selected and dialed Plaintiff’s and the Class members’ telephone numbers.” However, that may well be sufficient, thanks to the vagueness of the law. And the defendant is not even a Florida-based business. But, because the plaintiff alleges that she received the calls at issue while residing in and physically present in Florida, this Wisconsin-based defendant finds itself on the receiving end of a Florida class action.
For any marketers that call Florida residents, the implications are clear: do not make anything that could be construed as a telephonic sales call without making sure that you have acquired the prior express written consent of the called party. For the purposes of this law, prior express written consent should consist of a written agreement that:
- Is signed by the called party (a signature can be given electronically or digitally);
- Includes the telephone number of the called party;
- Clearly authorizes the caller to make telephonic sales calls to the called party that use an automated system “for the selection or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail;”
- Clear and conspicuous disclosures of all of the above.
In addition to making sure that you properly acquire consent, you must ensure that you document and track consent across your calling lists. If a consumer who had given consent files a complaint, you want to be able to prove that you have not violated the autodialer restrictions. It is also imperative that you have procedures in place to make sure that any calling lists you purchase from third parties have documented consent and that any third parties that you may hire to conduct calling campaigns follow your consent procedures. Just as with the TCPA, vicarious liability remains a significant source of risk.
If you need assistance in setting up a program for acquiring, tracking, and documenting consent, feel free to reach out to me directly. Click here to book 15 minutes on my calendar.