Attorney Brendan A. Sweeney Of Sweeney Law, P.A. Featured In The Feb/March 2022 Edition Of The Broward County Bar Barrister – A BRIEF OVERVIEW OF FLORIDA’S NEW MINI-TCPA
President John F. Kennedy poignantly stated on June 25, 1963 “Change is the law of life. And those who only look to the past or present are certain to miss the future.” The landscape of the laws in Florida concerning consumer protection and telemarketing have experienced significant recent changes and Florida practitioners should be aware of the amendments and implications. On July 1, 2021 Florida’s Senate Bill 1120 became effective, it amended the Florida Telemarketing Act and created a state-law statute similar to the federal Telephone Consumer Protection Act known as Florida’s “Mini-TCPA,” Fla. Stat. § 501, et. seq.
By way of background, the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) is a federal statute that was enacted in 1991 to address concerns relating to telephone solicitations. Congress passed the TCPA in 1991 in direct response to “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” The TCPA has been amended since its enactment to include the Junk Fax Protection Act of 2005 and the Truth in Caller ID Act of 2009. However, for the most part, the original statute has not been amended.
Florida’s Mini-TCPA seems to be in direct response to the recent decision reached by the Supreme Court in Facebook, Inc. vs. Duguid, et. al., 141 S. Ct. 193 (2020), issued on April 1, 2021, wherein the Court held that the TCPA is applicable only to random-fired calls and texts to cell phones from an automatic telephone dialing system (“ATDS”). The Court held that to be considered as an ATDS under the TCPA, a device must have the capacity to either (i) store a telephone number using a random or sequential number generator or (ii) produce a telephone number using a random or sequential number generator. The Facebook ruling overturned a prior Ninth Circuit ruling wherein the court broadly defined the type of ATDS that is subject to the TCPA. Below are some of the more important provisions of Florida’s Mini-TCPA.
Telephonic Sales Calls. Florida’s Mini-TCPA is applicable to telephonic sales calls, which is 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.”
Broader Definition of ATDS. 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.” The TCPA’s definition of auto-dialer only includes devices that use a sequential or random number generator.
Prior Express Written Consent. Prior express written consent is required for telephonic sales calls, including text messages, the playing of recorded messages when the connection is completed, and prerecorded voicemails made using an automated system.
Rebuttable Presumption. Florida’s Mini-TCPA creates a rebuttable presumption that solicitation calls made to any Florida area code is made to a Florida resident or person in Florida at the time of the alleged call.
Prohibited Call Times. Florida’s Mini-TCPA prohibits calls to be made before 8:00 a.m. or after 8:00 p.m., local time in the recipient’s time zone. Notably, Florida has covers two time zones, central and eastern.
Three Call Rule. There can be no more than three calls made during a twenty-four hour period.
Concealment Prohibited. The caller cannot intentionally conceal its name and telephone number or use technology that displays a different caller.
Exempted Calls. Section 501.604, Fla. Stat., sets forth exemptions to Florida’s Mini-TCPA. The parties exempt from Florida’s Mini-TCPA, include those: “engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.” Additionally, calls made for charitable; religious; political; or education purposes; and supervised financial institutions, such as lenders and commercial banks, are also exempt.
Private Right of Action. Florida’s Mini-TCPA creates a private right of action wherein a Plaintiff may obtain an injunction, recover the greater of their actual damages or $500.00, plus attorney’s fees and costs. Furthermore, a court may increase the damages up to three times, or $1,500.00, for a willing or knowing violation.
While this was not supposed to be an exhaustive list of all the distinctions between the federal Telephone Consumer Protection Act and Florida’s Mini-TCPA, it highlights the key areas. Florida practitioners need to be very careful when addressing issues concerning compliance with Florida’s Mini-TCPA and need to stay abreast of all the recent changes in the law.
See original article – February / March 2022 – BCBA (browardbar.org) Page 13