If You Make Telephone Sales Calls to Florida Consumers, You Need to Know About the New “Mini-TCPA” Law

Florida’s new law could mean major changes for companies making telephonic sales calls to Florida consumers. The law, often called Florida’s “mini-TCPA,” bars businesses from making telephonic sales calls to Florida consumers without the prior express written consent of the called party.

A “called party” is any regular user of the called telephone number. A “telephonic sales call” is defined as a telephone call, text message, or voicemail transmission to a consumer to:

• Solicit a sale of consumer goods or services
• Solicit an extension of credit for consumer goods or services
• Obtain information that can be used for soliciting such a sale or extension of credit

What led to the new law?

The law was passed in response to a recent U.S. Supreme Court decision that narrowed the reach of the federal Telephone Consumer Protection Act (TCPA). This ruling clarified and limited the definition of “automatic telephone dialing system” (ATDS). Under this new decision, a telephone system must have the capacity to dial numbers with a random or sequential number generator (and not merely the ability to place calls from a list of numbers, as is possible with any smartphone) to qualify as an ATDS and trigger application of the TCPA.

What does Florida’s mini-TCPA change?

1. The state’s definition of “auto-dialer” is broader than the TCPA’s definition of ATDS. So use of a telephone system that is allowed under the TCPA might still be problematic under the new Florida law.
2. Florida’s statute contains specific requirements for the “prior express written consent” companies need to make automated telemarketing calls. “Prior express written consent” means a written agreement that:
   • Bears the signature of the called party
   • Clearly authorizes the delivery of 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 called number, or the transmission of a prerecorded voicemail to the called party
   • Includes the telephone number to which the call may be delivered

The written agreement also must clearly and conspicuously disclose that the called party:

• • Authorizes the person making the telephonic sales call to deliver the call (or play a recorded message when a connection is completed) through use of an automated system for the selection or dialing of telephone numbers
  • Is not required to sign or enter into such an agreement as a condition to purchase any property, goods, or services

1. The law bans the use of technology to conceal a caller’s identity or deliberately display a different caller ID number than the number the call originates from.
2. The law limits the number of calls and when they can be made. Telemarketers can only attempt to contact a person three times on the same subject matter within a 24-hour period, regardless of the telephone number used to make the calls. The legal calling period is also limited to 8 a.m. until 8 p.m. local time.
3. A called party who is aggrieved by a violation of the new law can bring an action to enjoin the violation and recover actual damages or $500, whichever is greater, plus attorneys’ fees and costs. Courts also can award treble damages for a willful and knowing violation of the statute.
4. The statute includes a rebuttable presumption that calls made to a Florida area code are made to a Florida resident or someone in Florida.
5. Some exemptions exist under the new Florida law, including an exemption covering “supervised financial institutions” operating within the scope of “supervised activity.”

What do companies need to do next?

Businesses placing telephonic sales calls to Florida consumers should consult with counsel to make sure that they comply with Florida’s new “mini-TCPA” law. Several class actions already have been filed under the statute since it took effect in July, and we expect that trend to continue. Please contact Mike Hooker, Guy McConnell, or any member of Phelps’ Litigation team if you have questions or need compliance advice and guidance.