November 29, 2021

Volume XI, Number 333

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Florida Expands Telemarketing Laws

Florida recently amended its existing telemarketing laws, the Florida Do Not Call Act and the Florida Telemarketing Act.  SB 1120, which went into effect July 1, 2021, imposes significant additional restrictions (and additional penalties for violations) on businesses making calls to Florida residents or Florida area codes.

The amendments expand upon Florida’s existing telemarketing laws in a variety of ways. Florida law now requires a marketer to obtain prior express written consent for all “telephonic sales calls” (which is defined broadly and includes text messages) made using an autodialer. It also removes certain exemptions that were in the existing laws that allowed telemarketers to make sales calls if (a) the call was made in response to the consumer initiating the call, (b) the called number was not listed on the Do Not Call List, or (c) the call related to goods or services previously purchased by the customer. The amended law requires prior express written consent even in the foregoing instances. Such consent must be obtained by an electronic signature and informing the consumer that their consent is not required as a condition to purchase goods or services.

The amendments also provide for a private right of action. Similar to the federal Telephone Consumer Protection Act (TCPA), aggrieved parties are entitled to actual damages or $500 (whichever is greater), and treble damages in the event of knowing or willful violations. The law also prohibits use of technologies that display a different caller ID number for the purpose of concealing the identity of the caller.

Florida telemarketing laws are now more restrictive than the TCPA in certain respects. (The TCPA does not preempt any state law that imposes more restrictive requirements or regulations.) For example, telemarketers may only call between 8am and 8pm (whereas the TCPA allows calls until 9pm). The law also prohibits telemarketers from making more than three telephone solicitation calls to the same person regarding the same subject matter in a 24-hour period (regardless of the phone number being used); the TCPA does not contain a similar restriction.

In addition, plaintiff’s attorneys will likely argue that the definition of an autodialer is broader under Florida law than under the TCPA, given the recent U.S. Supreme Court decision in Facebook, Inc. v. Duguid.  Florida law applies to “automated system[s] for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed”, whereas, in the Facebook decision, the Court held that, in order to be considered an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store, or to produce, a telephone number using a random or sequential number generator.  It is expected that plaintiff’s attorneys will now rely more on state law violations, given the Court’s narrow interpretation of an autodialer under the TCPA.

Washington has also enacted similar telemarketing laws more restrictive (in some respects) than the TCPA. It is expected that other states may follow suit and enact similar legislation. In the meantime, companies making calls to Florida residents or Florida area codes should review their compliance programs and follow best practices when calling customers, keeping in mind that compliance with federal telemarketing law does not ensure compliance with state telemarketing laws.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 201
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About this Author

Genevieve Perez, Sheppard Mullin Law Firm, Emtertainment and Digital Media Attorney
Associate

Genevieve Perez is an associate in the Entertainment and Digital Media Practice Group in the firm's New York office. Genevieve’s practice focuses on transactional matters in the entertainment, technology, media, fashion and advertising fields.

212-653-8700
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