Recently, the State of Florida amended its laws governing telemarketing that have a strong impact on telemarketing and text message marketing targeting Florida residents (and to Florida area codes). These include the amended Florida Do-Not-Call Act (Fla. Stat. Ann. § 501.059) and the Florida Telemarketing Act a/k/a Florida’s “Mini-TCPA” (Fla. Stat. Ann. 502.601, et seq.) (collectively “Florida Laws”).
Impacts of the Florida Laws
The Florida Laws provide a right of action similar to those under the Telephone Consumer Protection Act (“TCPA”). (See Octillo’s article for more information about the TCPA and considerations for text marketing). Importantly, the Florida Laws create stricter restrictions on telephone solicitations (i.e., sales calls) and commercial telephone calls than those under the TCPA, TCPA regulations, and recent caselaw.
More Complex Restrictions to Navigate
The Florida Laws include requirements that deviate from or are more restrictive than those under the TCPA, TCPA regulations, and recent caselaw (in particular, the U.S. Supreme Court’s recent narrow interpretation of “automatic telephone dialing system” or ATDS). (See Octillo’s article on the SCOTUS decision here).
The Florida Laws are a hot topic and growing concern for businesses, including the contact center industry. On behalf of this industry, the Enterprise Communications Advocacy Coalition (ECAC) recently filed a petition asking the Federal Communications Commission (FCC) to interpret and preempt certain provisions of the Florida laws that “create a more restrictive environment” than the TCPA and TCPA Regulations and “frustrate the federal objective of creating uniform national rules and therefore must be preempted.” See
The most prominent aspects of the Florida Laws that have the potential to impose more restrictive requirements include:
1. Requirements Extend to Florida Residents & Florida Area Codes
The Florida Laws create a rebuttable presumption that telephonic sales calls made to any area code in Florida are made to residents or persons within the state at the time of the call.
2. Call Time Restrictions Changed
The times restrictions under the Florida Laws narrow the permissible call time window period by one hour (from 9 p.m. to 8 p.m.). This one-hour reduction arguably places an increase costs burden, in particular – on telemarketers.
3. New Three Call Frequency Limit
The Florida Laws include a call frequency limit of three “commercial solicitation phone calls” in a 24-hour period on the same subject matter/issue from any number. Imposing this limit when the TCPA does not include a similar limitation could impact telemarketers conducting nationwide calling campaigns.
4. Caller ID Restrictions Changed
The Florida Laws ban the use of technology that “deliberately displays” different caller ID number to conceal the true identity of the caller. This arguably conflicts with the FCC’s TCPA regulations that permit the use of such technology subject to conditions.
5. Automated Equipment/System Undefined & Broader Than ATDS
Under the Florida Laws the term automated system/equipment is not defined and arguably broader than the recent narrow interpretation of ATDS under the TCPA. This could open the door wider for litigation in Florida.
Private Right of Action & Potential Lawsuits
The amended Florida Do-Not-Call Act creates a private right of action for a called party to sue and recover actual damages, or $500 per violation (whichever is greater) plus attorney’s fees and costs.
Tighter restrictions coupled with the private right of action may lead to increased litigation related to telemarketing and text messaging activities targeting Florida residents or area codes. A series of civil actions (over 30) were filed since the Florida Laws took effect on July 1st, most dismissed or currently pending. The Octillo team is watching these cases carefully.
Next Steps for Businesses Marketing to Florida Residents or Florida Area Codes
As we continue to watch the response to the Florida Laws, marketing teams can take the steps below now to address and incorporate applicable requirements and help mitigate legal risk.
- Review telemarketing and text marketing practices in light of Florida restrictions
- Update policies and procedures to comply with Florida requirements
- Update automated dialing systems/equipment to meet Florida requirements
- Conduct due diligence/review of vendor systems/equipment used and evaluate compliance with Florida requirements
- Keep an eye out for a potential increase in litigation
Managing compliance of telemarketing and text message marketing remains a complex issue and the emergence of state-specific requirements such as those under the Florida Laws adds an additional layer of complexity. Businesses should remain proactive and vigilant in maintaining compliance best practices for telemarketing and text message activities. The Octillo team has deep experience guiding marketing teams and organizations managing compliance and litigation matters under the full spectrum of laws and regulations governing telemarketing and text message marketing.
For more information regarding the Florida Do-Not-Call Act, Florida Telemarketing Act, the TCPA, or related marketing questions email Octillo Member Myriah Jaworski at [email protected]
*Attorney Advertising: Prior results do not guarantee similar outcomes.
