To quote Ron Burgundy, “That escalated quickly.”
From wondering whether a bill in Florida aimed at creating its own state version of the Telephone Consumer Protection Act would ever make it to the governor’s desk to the bill becoming law and going into effect feels like it took less than the time to type out this sentence. CS/SB 1120 was signed into law by Gov. Ron DeSantis on Tuesday and goes into effect today, not giving companies much time to prepare for it. To help companies in the accounts receivable management industry understand the law and what it means for them, David Kaminski of Carlson & Messer offered the following comments to the readers of AccountsRecovery.net:
File this one under the “We knew it was coming – but from Florida Governor Ron DeSantis?? Yes!!
Carlson & Messer
Governor De Santis has now signed into law Florida’s version of the TCPA as to telephone solicitation and sales calls. This law prohibits telephone solicitations and sales calls where such call involves an “automated system for the selection or dialing of telephone numbers or the playing of a recorded message” without the prior express written consent of the called party. This bill does NOT pertain to commercial calls that do not contain an unsolicited advertisement or constitute sales or marketing. It takes effect on July 1, 2021.
While the United States Supreme Court recently limited (in Facebook v. Duguid) the definition of an autodialer in the federal TCPA to equipment which has the capacity either to store a telephone number or to produce a telephone number using a random or sequential number generator, the State of Florida’s new statute requires prior express written consent for all marketing/solicitation calls made using an “automated system (undefined) for the selection or dialing of telephone numbers or the playing of a recorded message”, regardless of a prior established business relationship between the caller and the consumer. The new statute provides a private right of action for $500 a call and authorizes a court to increase that award for willful and knowing violations. Consumers in Florida who receive unwanted solicitation and sales calls or recorded messages may now sue businesses unless prior express written consent was in place at the time the automated system call or recorded message call was made. The new law suggests that equipment that can automatically place calls or send text messages from a list of numbers (like some types of predictive dialing equipment) may be covered under the Florida statute, whereas the federal TCPA limits autodialers to equipment which has the “capacity” to store or produced numbers using a random and sequential number generator per Facebook v. Duguid.
Is the law constitutional? Maybe not, pursuant to the recent Supreme Court decision regarding statutory constitutionality in Barr v. AAPC. More on that to follow.
The Florida “mini-TCPA” is brand new and warrants further analysis, and its impact and scope will undoubtedly be reviewed by the Courts in consumer lawsuits which will inevitably be filed in the very near future. Businesses making sales and solicitation calls to Florida consumers should consult your counsel to discuss your calling strategies in the State of Florida.
Sales and Solicitation Callers BEWARE!!!!!!!
