Governor DeSantis signed CS/SB Bill 1120 into law, effective July 1, 2021.
This new law will engage businesses that engage in telemarketing (phone or text message solicitations) to Florida residents. Gryphon recommends that businesses become familiar with material changes to both the Florida Telemarketing Act and the Florida Do Not Call Act.
Some notable provisions of the statute include:
- This statute applies to all telephonic sales calls, 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.” Business-to-Business calls fall outside of this definition.
- The statute provides a private cause of action for violations to the Florida Do Not Call Act, which allows the aggrieved party to obtain an injunction and recover their actual monetary damages or $500, whichever is greater. It also authorizes a court to increase the award for willful and knowing violations.
- The statute requires businesses to obtain prior express written consent from individuals before placing sales or marketing calls through use of automated systems. It is important to note that the statute does not define “auto-dialer,” referring instead to “automated system[s] for the selection or dialing of telephone numbers or the playing of a recorded message,” which expands upon the definition contained in the Federal TCPA. As defined under the statute, prior written consent requires a signed agreement that authorizes a business to place/send a call, text, or voicemail through use of an automated system or pre-recorded message. This restriction applies to calls made with an established business relationship and calls to consumers not on the Florida state DNC.
- The statute reduces legal calling times from 8 a.m. to 8 p.m. (previously 9 p.m.) in the local time zone of call recipients.
- All telephonic sales calls made to any Florida area code are presumed to constitute calls made to a Florida resident or to a person that is in Florida, regardless of whether that in fact is the case. Please note: the rebuttable presumption in this statute means that unless a company can prove with solid evidence that a Florida area code does not ring to a person located in the state that the court may accept this presumption as a fact.
- Capping the number of calling attempts to three (3) commercial telephone calls over a 24-hour period involving the same subject matter or issue, regardless of the phone number used to make the calls.
- Prohibiting the use of technology to conceal the identity of a caller through use of caller identification technology (often referred to as “spoofing”).
- Please note: The proposed attempts (capping to 3 calls in a 24-hour period) and calling times rules (8 a.m. to 8 p.m.) are not subject to the private right of action. Additionally, this statute does not distinguish between landline and wireless numbers. Express Written Consent to call consumers with automated technology must be obtained before calling landlines or cellphones.
As the Gryphon team continues to monitor this Florida statute, we recommend that businesses making telephonic sales calls consider the following while discussing with their respective legal and regulatory advisors:
- Determine whether your company’s dialing platform is an auto-dialer under Florida law. The Florida definition of an auto-dialer is broader than the Federal standard and includes any “automated system for the selection or dialing of telephone numbers or the playing of a recorded message.”
- Require Express Written Consent prior to placing any calls to Florida area codes or persons in Florida. (This includes ensuring that any purchased leads have adequate Express Written Consent for your employees and agents to call. Maintain records of Express Written Consent for at least five years from the last date the consent was relied upon to place a call.
- Update your calling times for calls to Florida area codes or persons in Florida from 8 a.m. to 9 p.m. to 8 a.m. to 8 p.m. Please note that Florida is a two time-zone state when making these changes.
- Confirm that your dialer platform can cap the number of attempts to Florida area codes and persons in Florida to three attempts per 24-hour period.
- Document any changes made to your policies or procedures, including what changes were made and when they went into effect including updating attempts limits, calling times, and managing your internal Do Not Call list by consumer (include all of consumer’s known numbers on your internal do not call list).
TCPA and DNC Compliance
Gryphon has been monitoring CS/SB 1120 and preparing in advance to ensure you continue to enjoy the security that your organization remains in compliance with existing telemarketing laws in the State of Florida. As of July 1, 2021, Gryphon will configure its telemarketing compliance platform consistent with the permissible curfew times under this new Florida law which reduces legal calling times from 8 a.m. to 8 p.m. (previously 9 p.m.) in the local time zone of call recipients.
For those customers who have internal processes and procedures that may be impacted by this new law, and that may require updates to comply with this new law, Gryphon offers the ability to apply certification and calling blocks into Florida.
If you would like to block the ability to call or certify Florida telephone numbers while your organization reviews the requirements under this new law, please let your Customer Success Manager know or email firstname.lastname@example.org.