Sorry for being a bit late with our analysis. I know you’re used to TCPAWorld.com being the first to cover major stories–our slogan is “I already read about that on TCPAWorld.com” after all– but I’ll admit this analysis is a bit overdue. That said, we did break the story and create all the coverage around the bill to begin with so… hopefully you’ll give me a pass.
Last week I covered the critical amendment adding a private right of action to Florida Statute 501.059. I cannot emphasize enough how important that amendment is: i) a huge private right of action; ii) for using automated technology to contact your own customers (for marketing purposes) and customers that have requested information. Plus 059 is BROADER than the TCPA and allows direct lawsuits for “spoofing”, failure to disclose identifies, etc.
There is no private right of action under section 501.600, et seq. of the Florida Statute, but there are criminal penalties for some of the provisions–so watch out! And these amendments are important– where applicable callers must cease calls at 8 pm in the called person’s time zone. And callers must not call more than three times per 24 hours on the same subject matter.
Additionally, where applicable callers cannot use “technology that deliberately displays a different caller identification number than the number the call is originating from to conceal the true identity of the caller.” And if a caller does so in violation of this section, they commit a misdemeanor of the second degree! (It remains to be seen whether DID cycling or similar techniques designed to enhance call deliverability trigger this provision and–if so–how long DIDs must remain operational to avoid a finding of “concealment.”)
I use the phrase “where applicable” above by design. The amendments are bafflingly unclear as to what sorts of calls–or other conduct!–might trigger the statute. Indeed–as a number of readers have pointed out–the statute’s definitions appear to contain internal inconsistencies.
Let’s break this down. Here’s what YOU need to know:
1.: The Amended 501.616(6) Call Time Restrictions and Volume Limitations Are Likely Broader than They Appear–So Watch Out!
First, here is new 501.616(6) as amended: “A commercial telephone seller or salesperson may not make any of the following types of phone calls, including calls made through automated dialing or recorded messages:
(a) A commercial telephone solicitation phone call before 8 a.m. or after 8 p.m. local time in the called person’s time zone location.
(b) More than three commercial telephone solicitation phone 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.”
Lots to unpackage here. First some notes about the language of this provision. Notice the lead paragraph provides that types of “phone calls” are banned but then specifies “including calls made through automated dialing or recorded messages.” That is an odd qualifier–nobody would have assumed automated calls weren’t already covered by the provision. It bothers me and may suggest that automated calls on any subject are covered by these provisions when made by a commercial telephone seller. Otherwise I just don’t understand the purpose of that piece of the amendment. Keep an eye out for arguments that amended 501.616(6) is broader than it appears.
Next, notice the cumbersome wording of 501.616(6)(b)– it bans calls “from any number” to a person “regardless of the phone number used to make the call.” What does that mean precisely? The first “from any number” seems to be a reference to a callers’ outpulse number or DID and–rather bizarrely–seems to suggest that the caller has to use different numbers to exceed the three per day limitation. On the other hand, the latter phrase seems to take the opposite position if it is applied to outpulse numbers–here we are told the restriction applies regardless of the number used to “make” the call. Weird right?
What bothers me is that this provision 501.616(6)(b) might be interpreted to mean that a caller must assure that consumers are not called even where the person called is using multiple numbers. I.e., it the phrase “regardless of the phone number used to make the call” might refer to the called person’s number and not the outbound number from which the caller is calling. (The call is “made” to a consumer “using” multiple numbers the consumer provided.) The net result might be that callers must assure that they are not exceeding 3 calls per 24 hours to consumers on any number the consumer is using even if they receive multiple leads or inquiries in a 24 hour period. Crazy right? Or, it might mean merely that callers cannot evade the 3 calls per 24 hours by using different outbound numbers. The provision is just written too vaguely to tell.
2. The Definitions of “Commercial Telephone Solicitation” and “Commercial Telephone Seller” Are An Absolute Mess– Again, Watch Out!
As noted above, the provisions of amended 501.616(6) do not apply unless you are a Commercial Telephone Seller making a Commercial Telephone Solicitation. There is a bunch of confusion as to these definitions, but let me lead with this– the provisions of 501.616(6) are likely not limited to unsolicited calls and the exemptions of 501.604 likely do not apply. (But no one really knows for sure, yet.)
Digging in, the phrase Commercial Telephone Solicitation has the single most baffling definition I have seen in my 14 year career. Importantly, telephone solicitations are not limited to telephone calls. Here’s the definition in 501.603(1):
(c) Other communication with a person which represents a price, quality, or availability of consumer goods or services and which invites a response by telephone or which is followed by a call to the person by a salesperson.A lot of folks are getting to 501.603(1)(a), seeing the word “unsolicited” and stopping on the assumption that only unsolicited calls are barred by the statute. While that is one valid reading of the statutory scheme, that may not be the whole story.
Look at 501.603(b) and (c)–the definition includes any “other communication” where a salesperson intends to complete a sale or where a consumer is invited to respond by telephone after being informed about the price of a good.
Read broadly, the phrase “other communication” means any call–whether solicited, or even one made with express written consent–where a sale might take place over the phone. That reading seems to be a stretch since the statute “clarifies” that “other communication” means “a written or oral notification or advertisement transmitted through any means.” But maybe not–transmitted through “any means” seems to include, via telephone. And “notification” seems to include, you know, a phone call.
That said I don’t think the statute was intended to be read that broadly and the import of 501.603(b) and (c) is to expand the broader marketing restrictions of section 501.600, et seq. to apply to direct mail vendors and advertisers (social media, broadcast, billboards, etc.) who receive inbound communicationsfrom consumers with the intent to make sales.
Yet, when you try to take that definition and read it in conjunction with amended 501.616(6), it just doesn’t make sense. Such individuals would only be making “solicited” calls, not unsolicited ones. So that either means: i) 501.616(6) can never apply to the “other communications” identified in 501.603(1); or ii) that makers of “other communications” are always barred by 501.616(6), despite the fact that their outbound calls triggered by consumer engagement with “other communications” are presumably solicited. The courts will have to solve that irreconcilable conflict.
Tough though that one is, the definition of “Commercial Telephone Seller” is even worse.
Found at 501.603(2), “Commercial telephone seller” is defined as a “person who engages in commercial telephone solicitation on his or her own behalf or through salespersons. The term does not include…a person or entity… exempted from this part by s. 501.604.”
Ok, so the definition includes anyone who makes a telephone solicitation–which, as just discussed, is impossible to identify–unless he/she/it is exempted by Section 501.604.
Cool. No problem.
But here’s how section 501.604 begins: “The provisions of this part, except ss. 501.608 and 501.616(6) and (7), do not apply to [laundry list of content-specific exemptions]”
Section 501.604 specifically excepts from the statute’s myriad exemptions the very provisions that were just amended (i.e. 501.616(6) and (7).)
Now this can be read two ways. One way–the Plaintiff’s version–is that the definition of commercial telephone seller includes people who are specifically defined not to be commercial telephone sellers where the person is engaging in the behavior barred by 501.616(6) and (7). The other–better–reading is that the exception to the exemption in 501.604 applies only to the application of 501.616(6) and (7) to individuals who are truly commercial telephone sellers to begin with; i.e. the definitional element within 501.603(2) respecting exempted individuals should be read broadly to apply without reference to a limitation in 604 applicable to liability for conduct under 616(6) and (7).
So for those keeping track at home, it is unclear what the new statute prohibits and it is unclear who has to comply with it and for what sorts of calls.
I told you. This thing is a mess.
It gets better.
3. The CRIMINAL Penalties of Amended 501.616(7) Might Apply to Totally Normal Stuff Your Calling Platform Does All the Time
501.616(7) might end up being the most overlooked state statutory amendment in history–if it says what I think it might say, but I’m not really sure.
Here’s the language:
A commercial telephone seller or salesperson making a commercial telephone solicitation call may not:
(a) Intentionally act to prevent transmission of the telephone solicitor’s name or telephone number to the party called when the equipment or service used by the telephone solicitor is capable of creating and transmitting the telephone solicitor’s name or telephone number;
(b) Use technology that deliberately displays a different caller identification number than the number the call is originating from to conceal the true identity of the caller. A commercial telephone seller or salesperson who makes a call using such technology commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Again, let’s unpackage this.
Subsection (a) tells us that a telephone solicitor–again see the crazy definitional issues above–cannot fail to transmit the solicitor’s name and telephone number when the system allows it to do so.
Which telephone number does the caller have to send?
As folks in the call center world know, a platform might supply dozens of DIDs for various campaigns, or a single DID, or a call center might have a dedicated phone number that is not, strictly speaking, a number belonging to the seller of a good, etc. This is not so simple as it seems.
But newly-added section (b) is a real knockout punch. Whoever wrote this provision obviously has no idea how lock touch and DIDs work–or does and is intentionally trying to cripple an industry. A call center in Oklahoma might use a Florida number to contact folks in Florida to assure, for instance, that consumers can call that call center back without incurring long distance charges. The local number goes through to the company. But since the call center is in Oklahoma it is not accurate to say the number displayed is the number from which the call was coming from. Folks use multiple phone numbers that are real numbers that operate for specific campaigns. But those numbers aren’t up forever. Does section (b) mean the use of DIDs has to change in some way with respect to calls to Florida? Maybe. And if you swing and miss at this no biggy… you just might be headed to jail.
But here’s the real fun part. Notice how the statute prevents the USE OF TECHNOLOGY that displays a different number, rather than the PRACTICE of displaying different numbers. This is akin to the TCPA’s ATDS provisions, which bar the use of technology with the capacity to perform functionalities, and not the mere use of those functionalities. I am hoping that the word “use” in the provisions saves callers (all of them?) that use platforms with the ABILITY to display a local touch outpulse number, even where they do not deploy that functionality on a specific campaign. But we see courts get this stuff wrong all the time.
4. There is No Way This Amended Statute is Constitutional
You folks know I love the Constitution, particularly the First Amendment.
And although the First Amendment no longer guarantees free speech in this country, it does guarantee equal speech. Yet the Florida bill is riddled with content-specific exemptions that fly directly in the face of the Supreme Court’s big ruling in AAPC.
There is zero chance this statute survives a competent First Amendment challenge IMO. So keep it in mind.
Similarly, for the reasons laid out above the reach of the statute is entirely unclear. And given the criminal penalties attached here, the due process clause should plainly prevent the application of these extremely vague provisions to individuals that make, e.g. consented calls.
5. Take Aways: Assume these Provisions Apply to You, Even if they Don’t–Because they Might!
Although the proper application of the provisions is tough to discern BE CONSERVATIVE. Consider:
- Not calling Florida consumers after 8 p.m. local time, even with consent and even manually;
- Not calling Florida consumers more than 3 times in a 24 hour period, even if you receive multiple leads on multiple phone numbers associated with that consumer (and yes, that might mean you need to track calls at the consumer level and not the phone number level);
- Using your “real” number–i.e. a number with an area code for where your call center is located and not local touch–when contacting Florida consumers.
And if you do get sued or receive a CID or demand from any Florida regulator remember your constitutional rights and assert appropriate defenses and objections. (Good thing the Compliance Palooza will have a whole lengthy section on CID responses in less than 3 weeks...)
Obviously none of this is legal advice–just my opinion. Always always always seek counsel when engaging in a new outreach statute or where a new provision of law is enacted–like here.
Let’s chat if you have questions.