Reed Smith LLP

Reed Smith Client Alerts

Florida’s Mini-TCPA Law Guarantees No Rest for the Weary, Even Post-Facebook

Subscribe
Inicio Perspectivas Florida’s Mini-TCPA Law Guarantees No Rest for the Weary, Even Post-Facebook
A broad swath of businesses breathed a sigh of relief when, on April 1, 2021, the Supreme Court issued its decision in Facebook v. Duiguid and clarified the federal Telephone Consumer Protection Act’s definition of Automatic Telephone Dialing System (or “ATDS”). Resolving a circuit split, the Court held that a telephone system is not subject to the TCPA just because it can place calls from a list of numbers (as any smartphone can) but instead must have the capacity to dial numbers generated with a random or sequential number generator.

But the response in Florida – to amend its state telecommunications law to add a private right of action – means that companies that engage in SMS and phone advertising need to remain on guard if they are engaged in placing calls in that state. Effective July 1, 2021 and dubbed Florida’s “mini-TCPA,” the Florida law prohibits placing telephonic sales calls (including texts) without the prior express written consent of the called party. “Telephonic sales calls” is defined to mean “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.” A “called party” is any regular user of the telephone number called.

The law also provides that if calls are placed using a “caller identification service” – a “service that allows a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call and displayed on a device in or connected to the subscriber’s telephone” – then the calling party “must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor.” The Florida mini-TCPA also imposes time and volume restrictions on calls: no calls/texts may be placed before 8 a.m. or after 9 p.m., and no more than three calls/texts may be made in any 24-hour period “on the same subject matter or issue.” The Act covers calls to Florida residents, and carries a rebuttable presumption that any call to a Florida area code is a call to a Florida resident.

Critically, the Florida law does not limit its application to “ATDS” systems, as that term is used in the federal TCPA. Instead, the law purports to regulate all calls placed “involv[ing] an automated system for the selection or dialing of telephone number.” The mini-TCPA threatens stiff penalties that mirror the federal law: $500 per violation and up to $1,500 per willful violation.