Good morning TCPAWorld!
Its July 1, 2021–the day the new Florida Robocall Bill becomes effective.
I know you’ve read a lot of (mostly bad) analysis on the new bill already and are hungry for straight answers and clarity. I have received literally two dozen (mostly really good) questions about the bill over the last 36 hours so I know there is a lot of confusion out there. So let me give you my best shot at breaking this thing down.
I’ll warn you up front that certain provisions of the Florida Telemarketing Law–and I say this with love– are simply unintelligible gibberish. The courts are going to have to figure this thing out, and I hope that they may and quickly.
Also, it is important to keep in mind the amendments take place in two different sections of the Florida Statutes. This is critical because, as we’re about to see, there is now a private right of action for one amended section but not for the other.
To drive home this point–and also because its been a very busy week for me–I am going to break down the amendments in two different blogs, rather than in one. This blog will address the contours of new private right of action. The second blog will address the changes respecting the hours calls can be made, etc. I will also provide some additional analysis–particularly around the anti-spoofing provisions–in the near future.
Also, remember–this is NOT legal advice folks. If you have specific questions about how this bill impacts you SEEK COUNSEL. Don’t rely on blogs–even really well-written and analyzed blogs–in setting your course here. This stuff is deadly serious.
Ok, so let’s get started with Florida Statute Section 501.059, which is entitled “telephone solicitation.” That section is amended in the following key ways:
- Restriction on Autodialed Calls Without Express Written Consent:
- 059(a) is amended as follows: A person may not make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party. (Note: a “telephonic sales call” is 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” per section 059(1)(g).)
- 059(b) is removed: this section formerly permitted the use of an automated system to contact consumers who had called a business (i.e. via a call to action) or where a consumer had previously purchased a product from the business.
- Impact: This is the big one, which is why I lead with it. The statute’s vague formulation of autodialer means that it is absolutely critical that callers obtain express written consent before calling Florida phone numbers using any system that either automatically dials OR that automatically selects numbers to be dialed. Manual “click to dial” systems that operate using computers to select numbers to be clicked are likely NOT safe from this enactment. Only human number selection systems are going to work under this statute (I helped design one such system for Customer Dynamics called “Safe Select”–not an endorsement– but there may be other systems out there.) And this restriction applies REGARDLESS of whether the consumer has initiated contact–so businesses that rely on print, digital, or broadcast advertisements to drive inbound calls cannot return those calls unless they operationalize a means to obtain express written consent on live calls (e.g. via text message) or make use of human selection or true manual calling. What a headache.
- Private Right of Action Added for ALL PROVISIONS of 059:
- Amendment: A called party who is aggrieved by a violation of this section may bring an action to: 1. Enjoin such violation. 2. Recover actual damages or $500, whichever is greater. (b) If the court finds that the defendant willfully or knowingly violated this section or rules adopted pursuant to this section, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount available under paragraph (a).
- Impact: This is huge. The damages here track the TCPA. But it is critical to understand–and most folks are missing–that this private right of action applies to ALL of 059–not just the amended section related to autodialing without express written consent. That makes this bill MORE expansive than the TCPA in that it allows a private right of action for:
- Using an autodialer to call a consumer without express written consent as just discussed (059(8));
- A Telephone Solicitor’s failure to properly identify themselves in a call (059(2))(Note: “Telephone solicitor” means a “natural person, firm, organization, partnership, association, or corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not limited to, calls made by use of automated dialing or recorded message devices” (059(1)(f)));
- A solicitor’s failure to prevent calls to numbers on the Florida state DNC list (059(4));
- A solicitor’s failure to heed a DNC request (note: applies to all goods sold by a seller (059(5));
- A solicitor’s failure to prepare a proper contract with a consumer (059(6));
- A solicitor’s premature charge to a consumer credit card (059(7)); and
- A solicitor’s failure to abide the anti-spoofing provisions of the Act (059(8)(b) and (c)).
- Called Party Definition:
- Amendment: The phrase “Called party” is defined for the first time as part of the amendment. It reads: “a person who is the regular user of the telephone number that receives a telephonic sales call.”
- Impact: A marketer apparently cannot rely on the consent of the subscriber to the phone number, only the regular user of the number. It is unclear whether the Florida legislature really intended to prevent reliance by callers on consent provided by a subscriber, but that seems to be the clear language here. Consent disclosures should now contain a representation from the consumer that they are the regular user of the number.
- Prior Express Written Consent Definition:
- Amendment: “Prior Express Written Consent” is defined for the first time in the amendment. It reads: “a written agreement that: 1. Bears the signature of the called party; 2. 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 completed to a number called, or the transmission of a prerecorded voicemail; 3. Includes the telephone number to which the signatory authorizes a telephonic sales call to be delivered; and Includes a clear and conspicuous disclosure informing the called party that: a. By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called; and b. He or she is not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.”
- Impact: This language is substantially similar to the “express written consent” definition currently applicable under the TCPA found at 47 CFE § 64.1200(f)(9) and the standard should already be familiar to marketers.
Again, while the autodialer provision is getting the most press here–and for good reason–the private right of action here is much broader than that. So careful study of 059’s provisions are recommended for ANYONE selling in the state of Florida.
You’ll notice what is NOT covered by the private right of action, however, the newly-amended sections related to call limitations and timing of solicitation calls. I’ll cover those amendments (impacting Florida Statute Section 501.616) in a separate blog (look for it tonight or tomorrow.)
Question, how does this apply to Call Back functionality in your opinion? If you believe this is an issue, would a disclosure click through in the Call Back script be sufficent to allow consent, in your opinion?