Florida Makes Significant Changes to State Telemarketing Laws

Florida law now provides a private right of action for violations of various telemarketing rules, allows the use of certain automated telemarketing methods with prior express written consent, and imposes certain restrictions on telemarketing methods.

On June 29, 2021, Florida Governor Ron DeSantis signed into law a bill that makes significant amendments to the state's telemarketing laws. The amendments became effective on July 1, 2021. These amendments come in the wake of the Supreme Court's recent Facebook decision, which all but eviscerated the Telephone Consumer Protection Act ("TCPA"). Provisions of the bill include:

Private right of action. For a violation of any of the telemarketing rules in Florida Statute Section 501.059, consumers can now sue to enjoin the violation and recover actual damages or $500, whichever amount is greater. A court may award up to three times that amount for a willful or knowing violation. Previously, only Florida government entities could sue for violations of Section 501.059.

Automated telemarketing methods with express written consent. A "telephonic sales call" (defined as a telephone call, text message, or voicemail transmission to a consumer for certain solicitation purposes) can now be made using "an automated system for the selection or dialing of telephone numbers," or for "the playing of a recorded message when a connection is completed to a number," with the "prior express written consent" of the party to be contacted, as the term is defined in the law as amended.

Eliminating the "live messages" exception. The amendments delete an exception to certain telemarketing restrictions that had applied to "the use of an automated telephone dialing system with live messages," in situations where (i) the calls or messages were made in response to calls initiated by the person to be contacted; (ii) phone numbers for automatic dialing were screened to exclude any subscriber listed on the Florida's then-current "no sales solicitation calls" listing, and any unlisted phone number; or (iii) the calls made concerned goods or services previously ordered or purchased.

Other restrictions and penalties. The amendments place new restrictions on "commercial telephone solicitation phone calls" by shortening the permissible calling period to between 8:00 a.m. and 8:00 p.m. (from 8:00 a.m. to 9:00 p.m.); by limiting the number of calls to the same person about the same topic to three per 24-hour period; and by creating criminal penalties for using caller identification spoofing technology in making these calls. Violations are a second degree misdemeanor, punishable by up to a 60-day prison sentence.

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