Telemarketing

On July 1st, the recent amendments to Florida’s telemarketing statutes discussed in a prior article were signed into law.   The amendments included with SB 1120 essentially transforms Florida’s existing telemarketing laws into a “mini TCPA,” by incorporating many of the same elements found in the Telephone Consumer Protection Act (including a private right of action with $500 statutory damages, which can be tripled for willful violations).

However, although it substantially mirrors the TCPA, the new Florida law includes some important distinctions from equivalent provisions found in the federal law, which include the following:

A Broader ATDS Definition:  The 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.”   Many dialing platforms that may be excluded from TCPA coverage under the Supreme Court’s recent Facebook ruling will nevertheless qualify as automated dialing systems under this definition.

A Broad Definition of Covered Calls:  The new law makes no distinctions between calls, texts, or ringless voicemails.  Instead, it applies to “telephonic sales calls,” which are broadly defined as “a telephone call, text message, or voicemail transmission to a consumer for the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an extension of credit for such purposes.”

Narrower Call Hours:  The new law restricts the hours in which a telephonic sales call can be placed, from 8 am to 8 pm (previously calls could be made until 9 pm).

Call Attempt Limitation:  The new law makes it unlawful to place more than three telephonic sales calls from any number to a person over a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the call.  Remember, a “telephonic sales call” includes calls, texts, and ringless voicemails.

Narrower Definition of Called Party:  The new law specifies that a “called party” is only the “regular user” of the phone (unlike the federal standard, which also includes the subscriber to the phone).

Like the TCPA, the new Florida law includes an exemption for calls placed with the prior express written consent (PEWC) of the called party, and defines PEWC in a similar manner as the applicable federal rules.  Under the Florida law, “Prior express written consent” means a written agreement that:

• Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the called party a telephonic sales call using 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;

So, if you are placing calls based upon the TCPA’s PEWC exemption, it should also apply to the  PEWC standard established by the new Florida law.