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Florida Poised to Enact “Mini TCPA” Law

As discussed in the State Library section, although the federal TCPA gets most of the media’s attention, numerous states have enacted legislation that imposes similar obligations on marketers and other companies seeking to interact with consumers, as well similar penalties for violators, including a state-based private right of action.

Florida is now poised to join other states with “Mini TCPA” laws, including Arizona, Connecticut, and Georgia, with the passage of CS/SB 1120, which updates the Florida Consumer Protection Law and the Florida Telemarketing Act by creating a stricter version of TCPA.  Some of the more significant aspects of the proposed new law are summarized below.

PEWC RequiredThe new law restricts the use of automated technology and prerecorded messages by requiring prior express written consent before placing a call or sending a text message. These restrictions even apply to calls made with an established business relationship and calls to consumers who are not on the Florida state DNC list.

Broad ATDS Definition: The new law includes an autodialer definition that is  broader than how that term is defined in the TCPA, as interpreted by the Supreme Court in Facebook, which includes “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This broad definition is untested will likely result in significant and costly litigation to determine its applicability.

Private Right of Action:  The new law includes a private right of action with potential damages as high as $1500 for each willful violation, or actual damages or $500, whichever is greater, for violations that are not deemed to be willful.

Restricted Call TimesThe new law narrows legal call times (currently 8:00 am to 9:00 pm) to 8:00 am to 8:00 pm.

Area Code PresumptionThe new law includes a presumption that any call made to a Florida area code is a call to a Florida resident or to a person in the state, regardless of where the recipient may actually reside.

Cap on Call Attempts The new law includes a three-call cap on the number of attempts to reach a Florida consumer within a 24-hour period.

Upon receipt of the bill, Governor Ron DeSantis will have 15 (fifteen) days to sign it or veto it.  If he fails to any take action within that period, then the bill will automatically become law and be effective on July 1, 2021. If the bill is enacted into law, Blacklist members seeking to contact Florida residents should evaluate it carefully and be prepared to adjust outbound calling and texting campaigns accordingly.

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