May was a big month for State Mini-TCPA statutes. Florida passed an amendment to the Florida Telephone Solicitation Act, Fla. Stat. § 501.059 (“FTSA”), New Jersey amended its telemarketing law with Bill S921 (“Seinfeld Bill”), and Maryland passed the Stop the Spam Calls Act of 2023.
On May 25, 2023, Governor DeSantis signed H.B. 761 into law. We previously reported the changes to FTSA in more detail, but here are the highlights:
1. Narrowed Definition of an Autodialer. Previously, the FTSA prohibited using “an automated system for the selection or dialing of telephone numbers.” Fla. Stat. Ann. § 501.059 (8)(a), effective July 1, 2021 to May 24, 2023. The amendment limits the definition to an automated system that both selects and dials telephone numbers, by prohibiting the use of “an automated system for the selection and dialing of telephone numbers.” Fla. Stat. Ann. § 501.059 (8)(a), effective May 25, 2023.
2. Unsolicited Calls Prohibited. The amendments only prohibit unsolicited telemarketing calls. The amendment to the FTSA exempts several categories of calls from the definition of “unsolicited,” including calls made:
a. in response to an express request of the person called,
b. primarily in connection to collection or enforcement of an existing debt or contract,
c. to a person with whom the business has a prior or existing business relationship,
d. by a newspaper publisher in connection with its business. Fla. Stat. Ann. § 501.059(k)(1-4).
3. Revises Definition of Prior Express Written Consent. The amendment defines prior written consent as “a written agreement that bears the signature of the called party” which includes a clear and conspicuous disclosure authorizing the telephonic sales call to be made by telephone, call, text message or voicemail transmission. It also includes both the playing of a recorded message when a connection is completed to a number called, or the transmission of a prerecorded voicemail. Fla. Stat. Ann. § 501.059(g)(1-4).
4. Expanded Definition of Signature. “Signature” includes electronic and digital signatures, or any signature recognized as valid under federal or state law. “Signature” also includes “an act demonstrating consent” such as responding to a text message with consent language. Fla. Stat. Ann. § 501.059(h)(1-2).
5. 15 days safe Harbor for Text Messages. Plaintiff’s must text “STOP” before bringing a lawsuit and the senders have 15 days to stop sending the text messages. Fla. Stat. Ann. § 501.059(c).
6. Retroactive for Class Actions.
a. Amendments will apply retroactively to July 1, 2021 for putative class action cases so long as the class was not certified at the time the amendment was signed into law.
b. Otherwise, the amendments apply to individual actions after the amendment was signed into law, May 25, 2023.
New Jersey "Seinfeld Bill”
The Seinfeld Bill—signed into law on May 15, 2023 by Governor Phil Murphy—adds the following provisions to New Jersey’s telemarketing law:
1. Telemarketers must identify themselves within the first 30 seconds of a call.
a. and specifically identify the name and telephone number of company on whose behalf the call is being made. N.J. Stat. Ann. § 56:8-128(b), effective December 1, 2023.
2. Telemarketers have to disclose their address and the address of any company on behalf of who they are telemarketing on their website and in any correspondence to consumers. N.J. Stat. Ann. § 56:8-128(c), effective December 1, 2023.
3. Prohibits calls before 8:00 a.m. and after 9:00 p.m. N.J. Stat. Ann. § 56:8-128(d), effective December 1, 2023.
These requirements do not apply to any telemarketer who makes a residential marketing call in response to a customer’s affirmative requests for a follow-up telemarketing sales call or other contact from the telemarketer.
The Seinfeld Bill will go into effect on December 1, 2023.
Maryland Stop the Spam Calls Act of 2023
On May 3, 2023, the Stop the Spam Calls Act of 2023 was signed by Governor Wes Moore. While this law doesn’t go into effect until January 1, 2024, there are a lot of requirements callers will need to consider if they want to keep doing business in Maryland. A few notable provisions are as follows:
1. Expansive definition of an autodialer – “automated system for the selection or dialing of telephone numbers.” (This is the same broad definition previously found in the FLSA that was recently narrowed by amendment.)
2. Express written consent required for telephone solicitations made with an automated system, calls using a prerecorded or artificial voice, or a prerecorded voicemail.
a. “Signature” includes electronic or digital signature to the form is recognized under federal or state law.
3. “Telephone solicitation” is defined as communication to or attempt to:
a. sell, lease, or rent goods or services;
b. offer a gift or prize;
c. conduct a poll;
d. request survey information if the results of the survey will be used directly to solicit services.
4. A caller cannot conceal its identity through call-blocking technology.
5. No spoofing – i.e. a caller cannot display a different number than the one originating the call.
6. Prohibits calls before 8 a.m. or after 8 p.m. local time.
7. A limit of 3 calls per 24-hour period on the same matter or issue, regardless of the number used.
These restrictions do not apply to the following: isolated calls; solicitation for contracts for the maintenance or repair of previously purchased goods from a company or on their behalf; a single solicitation in response to a customer’s inquiry or request; or calls based on a preexisting business contract or relationship if the call is initially only intended for informational purposes. In addition to the above, there are specific exceptions for non-profits (including religious, charitable, political, and education-related entities) and business-to-business calls.
The Act will repeal, reenact and add certain provisions to Md. Code Ann. §§ 8–205, 13–301,14–4501 through 14–4503 and create a new subtitle “Subtitle 45. Telephone Solicitations.”