Florida's New Mini-TCPA: What You Need to Know
Florida's Senate Bill 1120 became effective on July 1, 2021, and has striking similarities to the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227., et. seq. The statute, referred to as Florida's "Mini-TCPA," amends the Florida Telemarketing Act, Fla. Stat. § 501, et. seq.
Florida's Mini-TCPA is a direct response to the U.S. Supreme Court's recent decision in Facebook, Inc. v. Duguid et al., 141 S. Ct. 193 (2020), issued on April 1, 2021, in which the Court unanimously held that the TCPA covers only random-fired calls and texts to cell phones from an automatic telephone dialing system (ATDS). Facebook overturned a U.S. Court of Appeals for the Ninth Circuit ruling in which the appellate court broadly defined the type of ATDS covered under the TCPA. (See Holland & Knight's previous alert, "Supreme Court's Facebook Decision Impacts TCPA Litigation," April 1, 2021.)
The Florida Legislature contends that the TCPA expressly permits state regulations that impose more restrictive intrastate requirements and expressly disclaims a complete preemption of state laws governing the regulation of unsolicited sales calls and the improper use of prerecorded messages claims. See 47 U.S.C. § 227(g)(6). See also TSA Stores, Inc. v. Department of Agriculture and Consumer Services, 957 So.2d 25, 28 (Fla. 5th DCA 2007).
A few notable requirements of Florida's Mini-TCPA are as follows:
- No solicitation phone calls, including calls made through automated dialing or recorded messages, can be made without the prior express written consent of the called party.
- The statute applies to telephonic sales calls, which means "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." Thus, debt collection and/or account servicing calls not involving any sort of solicitation are not subject to the requirements of Florida's Mini-TCPA.
- Florida's Mini-TCPA defines auto-dialer more broadly than the TCPA to include "an automated system for the selection or dialing of telephone numbers or the playing of a recorded message." Thus, companies should consider whether their current dialing system qualifies as an auto-dialer under this new law. Capacity for random or sequential number generation (required under the TCPA's definition of ATDS) is not part of the Florida's Mini-TCPA auto-dialer definition. Thus, it is possible that predictive dialers without random or sequential number generation capacity might meet the definition.
- No calls before 8:00 a.m. or after 8:00 p.m. local time in the called person's time zone. Florida spans two time zones, Eastern and Central. Thus, companies should ensure that their dialing systems implement these time restrictions to calls placed to persons in Florida.
- No more than three phone calls can be made during a 24-hour period, regardless of the phone number used to make the call. To this end, Florida's Mini-TCPA is more strict than the Florida Consumer Collection Practices Act (FCCPA), which does not establish a specific number of calls that can be made without harassing a consumer. To comply with this requirement, companies should ensure that their dialing system can cap the number of call attempts to Florida area codes.
- The caller cannot intentionally conceal its name and telephone number or use technology that displays a different caller identification number than the number from which the call is originating.
Florida Mini-TCPA establishes a rebuttable presumption that solicitation calls made to any area code within the state of Florida is made to a Florida resident or person in Florida at the time of the call. Further, similarly to the TCPA, Florida's Mini-TCPA allows aggrieved parties to bring a private action to enjoin the violating party. A prevailing plaintiff may recover actual damages or $500, whichever is greater, plus attorney fees and costs. The statute further authorizes treble damages for willful and knowing violations.
A number of exemptions apply to the requirements of Florida's Mini-TCPA, including an exemption covering "supervised financial institutions" operating within the scope of "supervised activity." Whether this exemption or others apply is also a critical consideration requiring case-by-case review.
Holland & Knight's Financial Services Litigation Team aggressively defends companies against individual and class action litigation brought under the TCPA and state counterparts such as Florida's Mini-TCPA. In addition, Holland & Knight's Financial Services Regulatory Team assists clients with compliance questions.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.