The new law prohibits the use of an “automated system” to make “telephonic sales call” without the prior express written consent of the “called party.” A “telephonic sales call” 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.” “Consumer goods or services” is defined as “real property or tangible or intangible personal property that is normally used for personal, family, or household purposes, including, but not limited to, any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed, as well as cemetery lots and timeshare estates, and any services related to such property.” The “called party” is defined as “a person who is the regular user of the telephone number that receives a telephonic sales call.”
Surprisingly, “automated system” is not a defined term in the new law. However, the law’s prohibitory language refers to telephonic sales calls that involve “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.” Thus, the systems that can qualify as an “automated system” for purposes of the new Florida law are not limited to equipment that would qualify as an automatic telephone dialing system (ATDS) under the federal Telephone Consumer Protection Act (TCPA). The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In Facebook v. Duguid, the U.S. Supreme Court held that automatic dialing technology only qualifies as an ATDS if it has the capacity to store numbers “using a random or sequential number generator” or produce numbers “using a random or sequential number generator.”
In addition to covering a broader range of equipment than the TCPA, the new Florida law’s prohibition on using automated systems is not limited to calls to cellular phones. Also, under the new law, to obtain a consumer’s “prior express written consent” to receive calls made using an automated system, a company must provide a specified disclosure and satisfy other requirements.
The new law does not expressly limit its coverage to calls made to consumers located in Florida and instead broadly prohibits “a person” from making calls using automated systems without the consumer’s consent. However, the law contains a rebuttable presumption that any call to a number with a Florida area code is to a Florida residence or to a person in Florida at the time of the call. This would suggest that the law is only intended to cover calls to Florida consumers.
The statute contains a number of exemptions, including an exemption for a “supervised financial institution or parent, subsidiary, or affiliate thereof operating within the scope of supervised activity.”
The statute also includes other limitations on telemarketing calls, including prohibitions on making commercial telephone solicitations before 8 a.m. or after 8 p.m. (in the called person’s time zone), making more than three commercial telephone solicitations from any number to a person over a 24-hour period on the same subject matter or issue, and using technology to conceal the caller’s true identity.
The new law includes a private right of action for violations and provides for the greater of actual damages or $500, which can be trebled for willful or knowing violations.