This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1095c.CIV
DATE: 2/9/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 1095 Telephone Solicitation
SPONSOR(S): Civil Justice & Property Rights Subcommittee, Regulatory Reform Subcommittee, Beltran
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 17 Y, 0 N, As CS Thompson Anstead
2) Civil Justice & Property Rights Subcommittee 16 Y, 2 N, As CS Mathews Jones
3) Commerce Committee
SUMMARY ANALYSIS
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and Consumer
Services (DACS) before operating in Florida.
The law governing telephone solicitations in Florida, the Florida Do Not Call Act, prohibits unsolicited
telephonic sales calls and text messages from telemarketers. Residents who do not wish to receive unsolicited
telephonic sales calls may have their residential, mobile, or paging device telephone number included on the
Do Not Call List. A resident may add his or her number to the Do Not Call List indefinitely and free of charge.
The Florida Do Not Call List is maintained through DACS.
The law governing telephone solicitations also prohibits telephonic sales calls that use an automated system
for the selection or dialing of telephone numbers or the playing of a recorded message (robocall) when a
connection is completed without the prior express written consent of the called party.
CS/CS/HB 1095:
Revises the requirements for an automated dialing system within the definition of “prior express written
consent,” to specifically mean an automated system for the selection and dialing of telephone numbers;
and clarifies that “the transmission of a text message” is also allowed.
Revises the definition of “unsolicited telephonic sales call" to mean a telephonic sales call other than a
call made within 120 days after an express request of the called party, a call made to a caller who has
previously given prior express consent, or a call made for certain polling purposes.
Revises other definitions within s. 501.059, F.S.
Clarifies and limits calls or messages made solely in response to an inquiry initiated by the called party
to three such calls or messages in response to each inquiry.
Clarifies that in order for a prevailing party to be awarded attorney fees and costs from a non-prevailing
party in civil litigation cases, such litigation must result from a violation, instead of a transaction
involving a violation.
Prohibits a telephone solicitor from causing any unsolicited telephonic sales call to be initiated by the
use of any automated system.
Prohibits a telephone solicitor from causing any other person other than the caller to initiate a sales call.
The bill provides that it applies retroactively to July 1, 2021, and to any proceeding pending or commenced on
or after July 1, 2021. However, the amendments made to s. 501.059(11), F.S., relating to attorney fees are not
retroactive.
The bill does not appear to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2022. STORAGE NAME: h1095c.CIV PAGE: 2
DATE: 2/9/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Telemarketing Act
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and
Consumer Services (DACS) before operating in Florida. Certain exempt entities must have a valid
affidavit of exemption on file prior to operating in Florida. There are approximately 28 exemptions,
including: soliciting for religious, charitable, political or educational purposes; research companies;
newspapers; book and video clubs; cable television; and persons or companies with whom the
consumer has a prior business relationship.
1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
Be licensed;
2
Post a form of security;
3
License all of their salespeople;
4
and
Provide DACS with a list of all telephone numbers used to make sales calls.
5
An application for licensure as a telemarketer must include several pieces of information, including the
applicant’s identifying information, prior experience in the field, criminal and administrative history
(especially relating to fraud, theft, or unfair and deceptive trade practices), phone numbers from which
the telemarketer will make sales calls, and parent or affiliate entity under which it will transact business,
if applicable.
6
Additionally, an applicant for licensure as a telemarketer must submit:
A script that will be used by its salespersons during calls, or other related literature;
The identity, address, date of birth, and alias of each of the applicant’s principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant; and
A $1,500 licensing fee.
7
In Florida, it is unlawful for telemarketers to:
Accept novelty payments.
8
Employ or be affiliated with an unlicensed salesperson.
Be employed by or affiliated with an unlicensed commercial telephone seller.
Operate without a license.
Make calls before 8 a.m. or after 8 p.m. local time at the called person’s time zone.
Fail to provide the call recipient with their name and telephone number.
9
1
S. 501.604, F.S.
2
S. 501.605, F.S.
3
S. 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit in favor of the
Department for payment on findings of fraud, misrepresentation, breach of contract, or other violation by the applicant.
4
S. 501.607, F.S.
5
S. 501.605, F.S.
6
S. 501.605(2), F.S.
7
S. 501.605(5)(b), F.S.
8
S. 501.603(8), F.S., defines a “novelty payment” as a payment method that does not have systematic monitoring and includes
remotely created checks, remotely created payment orders, cash-to-cash money transfers (such as Western Union) and cash reload
mechanisms (such as MoneyPak or ReloadIt). Novelty payment methods are not systematically monitored, have little to no consumer
protection in the case of fraud or theft, and are used frequently in scams and other fraudulent activity.
9
S. 501.616, F.S. STORAGE NAME: h1095c.CIV PAGE: 3
DATE: 2/9/2022
Violations of the FTA are punishable by a civil fine of up to $10,000 per violation,
10
the imposition of
criminal penalties, and up to a third degree felony. Repeat violations are enhanced to a second degree
felony.
11
DACS and the office of the state attorney have investigative authority, including the power to
subpoena witnesses if a violation occurs.
12
Reasonable attorney fees and costs may be awarded to the
prevailing party in a civil action as part of a judgment or administrative order.
13
Telephone Solicitations
Do Not Call List
Section 501.059, F.S., governs telephone solicitations. The law includes the Florida Do Not Call Act,
also known as the "Do Not Call” list (DNC list), which prohibits unsolicited telephonic sales calls and
text messages from telemarketers.
14
Residents who do not wish to receive unsolicited telephonic sales
calls may have their residential, mobile, or paging device telephone number included on the DNC list.
DACS maintains the DNC list, it is free to register, and a registered number remains on the DNC list
indefinitely.
15
An “unsolicited telephonic sales call” is defined as a telephonic sales call other than a call made:
In response to an express request of the person called;
Primarily in connection with an existing debt or contract, if payment or performance of such debt
or contract has not been completed at the time of such call;
To a person with whom the telephone solicitor has a prior or existing business relationship; or
By a newspaper publisher or his or her agent or employee in connection with his or her
business.
16
Telephone solicitors
17
are prohibited from making telephonic sales calls
18
to consumers who register for
the DNC list. A “telephonic sales call” means a telephone call, text message, or voicemail transmission
to a consumer for the purpose of soliciting a sale of 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.
19
In addition to those consumers who are registered for the DNC list, a telephone solicitor may not call or
text a consumer who previously communicated to the telephone solicitor that he or she does not wish
to be contacted. Businesses and charities are required to maintain a list of consumers who have made
a do-not-call registration request. It is a violation of the Florida Do Not Call Act to call a consumer who
has requested placement on the company's do-not-call list.
20
When a telephone number is made available through a caller ID service during a telephonic sales call,
the solicitor must ensure that the number is capable of receiving phone calls, and that the dialing of the
number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
phone call was placed.
21
10
S. 501.619, F.S.
11
S. 501.623, F.S.
12
S. 501.617, F.S.
13
S. 501.621, F.S.
14
See s. 501.059, F.S.
15
Department of Agriculture and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-
Call (last visited Feb. 7, 2022).
16
S. 501.059(1)(k), F.S.
17
S. 501.059(1)(i), F.S., defines “telephone solicitor” as “a natural person, firm, organization, partnership, association, or corporation, or
a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but not
limited to, calls made by use of automated dialing or recorded message devices.”
18
S. 501.059(1)(j), F.S., defines “telephonic sales call” 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.
19
S. 501.059(1)(j), F.S.
20
S. 501.059(5), F.S.
21
S. 501.059(8)(b), F.S. STORAGE NAME: h1095c.CIV PAGE: 4
DATE: 2/9/2022
Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
Complaint Form.
22
Prior Express Written Consent
The law governing telephone solicitations also prohibits automated telephonic sales calls without the
prior express written consent of the called party.
23
"Prior express written consent" is defined as a written agreement that:
Bears the signature of the called party;
Clearly authorizes the person making or allowing the placement of a telephonic sales call by
telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the
called party a telephonic sales call using an automated system for the selection or dialing of
telephone numbers, the playing of a recorded message when a connection is completed to a
number called, or the transmission of a prerecorded voicemail; and
Includes the telephone number to which the signatory authorizes a telephonic sales call to be
delivered.
24
Prior express written consent must include a clear and conspicuous disclosure informing the called
party that:
By executing the agreement, the called party authorizes the person making or allowing the
placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to
the called party using 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; and
He or she is not required to directly or indirectly sign the written agreement or to agree to enter
into such an agreement as a condition of purchasing any property, goods, or services.
25
There is a rebuttable presumption that a telephonic sales call made to any Florida area code is a call
made to a Florida resident or to a person in Florida at the time of the call.
26
Violations
A telephone solicitor who violates the provisions of Florida’s “Do Not Call” program is subject to an
injunction and a civil penalty
27
with a maximum fine of $10,000 per violation, or an administrative fine
28
with a maximum of $1,000 per violation. Additionally, a telephone solicitor may be subject to
responsibility for the consumer’s attorney fees and costs.
29
A party who was called in violation of the Do Not Call Act may bring an action for an injunction and
actual damages or $500, whichever is greater.
30
Courts that find that a defendant willfully or knowingly violated these provisions are authorized to,
increase the amount of the award to not more than three times the amount of damages.
31
Federal Telephone Consumer Protection Act (TCPA) History
In an effort to address a growing number of telephone marketing calls, Congress enacted the
Telephone Consumer Protection Act (TCPA) in 1991. The TCPA restricts the making of telemarketing
22
DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Feb. 7, 2022).
23
S. 501.059(8)(a), F.S.
24
S. 501.059(1)(g), F.S.
25
S. 501.059(1)(g)4., F.S.
26
S. 501.059(8)(d), F.S.
27
S. 501.059(9)(a), F.S.
28
S. 501.059(9)(b), F.S.
29
S. 501.059(11), F.S.
30
S. 501.059(10)(a), F.S.
31
S. 501.059(10)(b), F.S. STORAGE NAME: h1095c.CIV PAGE: 5
DATE: 2/9/2022
calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages.
The rules apply to common carriers as well as to other marketers. In 1992, the Commission adopted
rules to implement the TCPA, including the requirement that entities making telephone solicitations
institute procedures for maintaining company-specific do-not-call lists.
32
In July 2015, the Federal Communications Commission (FCC) established rules indicating that
telephone carriers can block unwanted calls at the request of consumers.
33
Following the FCC’s ruling,
the National Association of Attorneys General (NAAG) called upon the major telephone carriers to do
more to provide these services to consumers.
34
Currently there are a number of call-blocking
applications that provide some relief from unwanted and spam calls.
35
On November 16, 2017, the FCC adopted new rules to allow voice service providers to proactively
block certain types of robocalls that are likely to be fraudulent because they come from certain types of
phone numbers, including those that do not or cannot make outgoing calls.
36
For example, perpetrators
have used IRS phone numbers that do not dial out to impersonate the tax agency, informing the people
who answer that they are calling to collect money owed to the U.S. government. Such calls appear
legitimate to the person who receives them and may often result in fraud or identity theft. Service
providers can now block such calls, as well as calls from invalid or illegitimate numbers.
37
The FCC requires telemarketers to transmit caller identification information, including the number and
name of the caller. The telephone number provided must permit any individual to make a do-not-call
request during regular business hours. It also provides that any person or entity that engages in
telemarketing is prohibited from blocking the transmission of caller identification information. However,
tax-exempt nonprofit organizations are exempt from compliance with these rules.
38
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-blocking
applications on their landlines and allows carriers to directly block certain illegal robocalls. In December
2019, Congress enacted the “TRACED Act” to aid enforcement efforts between law enforcement
agencies and the private sector on traceback issues, and required the FCC to issue rules “for the
registration of a single consortium that conducts private-led efforts to trace back the origin of suspected
unlawful robocalls.”
39
In July of 2020, the FCC designated the US Telecom-led Industry Traceback
Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the origin of
suspected unlawful robocalls.
40
According to the ITG’s first annual report, over 100 companies participated in over 1,000 ITG traceback
investigations in 2019, identifying more than 10 million illegal robocalls and resulting in more than 20
subpoenas and/or civil investigative demands from federal and state enforcement agencies.
41
32
Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-
robocalls (last visited Feb. 7, 2022).
33
Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer Protection
Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015).
34
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved,
https://www.naag.org/consumer-protection/attorney-general-journal/do-not-call-the-history-of-do-not-call-and-how-telemarketing-has-
evolved/ (last visited Feb. 7, 2022).
35
CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/consumer-tips/robocalls (last visited Feb. 7, 2022).
36
32 FCC Rcd 9706 (11).
37
FCC, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Feb. 7,
2022).
38
47 C.F.R. s. 64.1601.
39
Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274 (2019).
40
USTelecom The Broadband Association, FCC Names USTelecom’s Industry Traceback Group as Official Robocall Traceback
Consortium, https://www.ustelecom.org/fcc-names-ustelecoms-industry-traceback-group-as-official-robocall-traceback-consortium/ (last
visited Feb. 7, 2022).
41
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-developments-
world-call-delivery/ (last visited Feb. 7, 2022). STORAGE NAME: h1095c.CIV PAGE: 6
DATE: 2/9/2022
The ITG reported in a letter to the FCC on November 13, 2020, that about 100 providers had failed to
cooperate with the ITG, including approximately 30 based in the United States.
42
The ITG encouraged
the FCC to bring aggressive enforcement against robocallers and voice service providers that routinely
refuse to participate in the traceback process.
43
In its Fourth Report and Order on Advanced Methods to Target and Eliminate Unlawful Robocalls
released on December 30, 2020, the FCC required “all voice service providers to respond to traceback
requests from the FCC, civil and criminal law enforcement and the Consortium.”
44
The TRACED Act requires the FCC to issue an annual public notice seeking applicants to serve as the
registered consortium.
45
On August 25, 2021, the FCC selected the Traceback Group to continue as
the registered consortium.
46
National Do Not Call Registry
Although individual states were first to address consumers’ requests to stop unwanted telemarketing
calls,
47
the federal government soon followed with a National Do Not Call Registry in 2003.
48
In July
2003, the federal government issued a report and order establishing the National Do Not Call registry.
The national registry covers all telemarketers (with the exception of certain nonprofit organizations),
and applies to both interstate and intrastate calls. The registry is administered by the FTC. To reduce
the number of hang-up and dead air calls consumers experience, the Commission’s telemarketing rules
also contain restrictions on the use of autodialers and requirements for transmitting caller ID
information.
As the National Do Not Call Registry has gained popularity, some states have decided to forgo the
expense of maintaining their own lists. Currently, only 12 states maintain their own Do Not Call lists:
Colorado, Florida, Indiana, Louisiana, Massachusetts, Mississippi, Missouri, Oklahoma, Pennsylvania,
Tennessee, Texas and Wyoming.
49
Constitutionality of Do Not Call Registries
Do Not Call registries have been subject to numerous state and federal lawsuits challenging their
constitutionality. Such lawsuits have been unsuccessful, and the National Registry has been upheld as
constitutional. The courts have found the Do Not Call Registry is a reasonable restriction on
commercial speech and that the FTC is authorized to promulgate rules for the registry. The Tenth
Circuit Court of Appeals stated, “the do-not-call registry prohibits only telemarketing calls aimed at
consumers who have affirmatively indicated that they do not want to receive such calls and for whom
such calls would constitute and invasion of privacy.” Thus, the government has a role in restricting the
ability of a telemarketer to reach a household via telephone, and because the government has left the
ultimate decision of whether or not to be placed on the registry up to the individual, the government has
not restricted the First Amendment rights of the solicitor.
50
Claims of preemption have also been unsuccessful. The TCPA’s non-preemption clause,
51
often
referred to as the savings clause, has been relied upon by courts to uphold states’ Do Not Call
42
USTelecom, Enforcement Bureau Requests Information on the Status of Private-Led
Traceback Efforts of Suspected Unlawful Robocalls, EB Docket No. 20-195, Nov. 13, 2020,
https://docs.fcc.gov/public/attachments/DOC-368957A2.pdf (last visited Feb. 7, 2022).
43
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-developments-
world-call-delivery/ (last visited Feb. 7, 2022).
44
FCC, Fourth Report and Order (Dec. 29, 2020) https://docs.fcc.gov/public/attachments/FCC-20-187A1.pdf (last visited Feb. 7, 2022).
45
TRACED Act, s. 13(d)(2).
46
FCC, Report and Order DA 21-1047 (Aug. 25, 2021) https://www.fcc.gov/document/fcc-retains-industry-traceback-group-robocall-
consortium (last visited Feb. 7, 2022).
47
At least 28 states, starting with Florida in 1987, have implemented Do Not Call registries.
48
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Feb. 7, 2022).
49
Contact Compliance Center Corporation, State Do Not Call Lists, https://www.dnc.com/faq/state-do-not-call-lists?page=1 (last visited
Feb. 7, 2022).
50
Mainstream Marketing Services Inc v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. 2004).
51
47 U.S.C. s. 227(f)(1). STORAGE NAME: h1095c.CIV PAGE: 7
DATE: 2/9/2022
Registries. The clause states that “[n]othing in this section or in the regulations prescribed under this
section shall preempt any State law that imposes more restrictive intrastate requirements or regulation.”
The clause indicates specific types of actions that a state may prohibit or place more restrictive
regulations on, such as sending unsolicited advertisements via fax, using of automatic dialing systems
and prerecorded messages, and making telephone solicitations.
52
The TPCA is silent on a state’s ability to place regulations that are more stringent than the TCPA
requirements for interstate calls.
53
However, at least one federal court of appeals has held that state
regulations and prohibitions of telemarketing may cross state boundaries.
54
Caller ID and “Spoofing”
“Spoofing” is the practice of altering or manipulating the caller ID information that is received in
conjunction with an incoming telephone call. In the past, caller ID services were not common and
spoofing required special equipment or a relatively high degree of technical sophistication. However,
advances in technology, such as the proliferation of cellular phones, cell phone applications, and the
widespread availability of Voice over Internet Protocol (VoIP) allows anyone to inexpensively spoof his
or her caller ID using the services of a third-party spoofing provider.
55
For example, one such spoofing
provider allows a consumer to download an app on his or her smartphone, purchase credits towards
call time, and simply input the number that he or she wants displayed on the receiving end in order to
place an untraceable, spoofed call.
56
In response to the growing practice of spoofing, Congress amended the TCPA to add the Truth in
Caller ID Act of 2009. Under the Act and FCC rules, a person or entity is prohibited from transmitting
false or misleading caller ID information “with the intent to defraud, cause harm, or wrongly obtain
anything of value,” with a penalty of up to $10,000 for each violation.
57
However, spoofing is not illegal
when no harm is intended or caused, or if the caller has legitimate reasons to hide his or her
information. Examples may include law enforcement agencies working on a case, a victim of domestic
abuse, or a doctor who wishes to discuss private medical matters with a patient.
58
In 2008, Florida passed its own anti-spoofing legislation, The Florida Caller ID Anti-Spoofing Act
(2008).
59
The Act prohibits any person from:
Making a call with knowledge that false information was entered into a telephone caller ID
system with the intent to deceive, defraud, or mislead the call’s recipient; and
Entering false information into a telephone caller ID system “with the intent to deceive,
defraud, or mislead” the call’s recipient.
However, a U.S. District Court in Miami found that Florida’s Caller ID Anti-Spoofing Act (2008) violated
the Commerce Clause of the United State Constitution because it had the effect of controlling spoofing
practices that took place entirely outside the state.
60
Similarly, in 2011, a federal court in Mississippi
struck down Mississippi’s anti-spoofing law, which was substantially similar to Florida’s.
61
Spam Robocalls
52
National Association of Attorneys General, Do Not Call: The History of Do Not Call and How Telemarketing Has Evolved, NAGTRI
Journal, Vol. 1 No. 4.
53
47 U.S.C. s. 227 (f)(1).
54
See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041 at 1044-45 (7th Cir. 2013) and Patriotic Veterans, Inc. v. State of Indiana, No.
16-2059 (7th Cir. 2017)( “Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time,
place, and manner restriction.”).
55
See FCC 11-100, Rules and Regulations Implementing the Truth in Caller ID Act of 2009, WC Docket No. 11-39, (June 22, 2011), at
9116, https://apps.fcc.gov/edocs_public/attachmatch/FCC-11-100A1_Rcd.pdf (last visited Feb. 7, 2022).
56
Business Insider, It’s Surprisingly Easy for a Hacker to Call Anyone From Your Personal Phone Number (March 1, 2016),
http://www.businessinsider.com/phone-number-spoofing-2016-2 (last visited Feb. 7, 2022).
57
47 U.S.C. s. 227(e).
58
FCC, Caller ID Spoofing, https://www.fcc.gov/consumers/guides/spoofing-and-caller-id (last visited Feb. 7, 2022).
59
S. 817.487, F.S. (2008).
60
TelTech Systems, Inc. v. McCollum, No. 08-61664-CIV-MARTINEZ-BROWN (S.D. Fla. Filed Oct. 16, 2008).
61
TelTech Systems, Inc. v. Barbour, 866 F. Supp. 2d 571 (S.D. Miss. 2011), aff’d sub nom Teltech Systems, Inc. v. Bryant, 702 F.2d
232 (5th Cir. 2012). STORAGE NAME: h1095c.CIV PAGE: 8
DATE: 2/9/2022
According to the American Association of Retired Persons (AARP), robocalls have become an
epidemic. YouMail, a company that provides call-blocking and call-management services, estimates
that there were 58.5 billion robocalls in the U.S. in 2019 and that 44% of them were placed by
scammers.
62
A February 2021 survey found that 46% of Americans reported receiving spam phone calls on their cell
phone every day, and another 24% receiving them multiple times per week.
63
Scammers often use caller ID spoofing to mask their true location and make it appear the call is from a
legitimate or local number to raise the odds of getting an answer. What follows is a robotic voice on the
other end claiming to represent a utility, a name-brand company, or a government agency (such as the
Social Security Administration or the Internal Revenue Service). It might offer a free cruise, inexpensive
health insurance, or a low-interest loan. Answering or engaging with the call may lead to a live
scammer, who realizes he or she has found a “live” number, and thus may call repeatedly.
64
Many robocalls are legal. The FCC allows such robocalls for informational or noncommercial purposes,
such as polling, political campaigning and outreach by nonprofit groups.
Advances in technology have magnified fundamental flaws in the American phone system, enabling
unrelenting robocalls from untraceable origins. As a result, it is incredibly profitable to use spam calls to
drive business regardless of whether the caller is perpetuating a scam or is a legitimate business using
telemarketing to increase sales.
65
Consent and Revocation
The TCPA prohibits a telemarketer from using an automatic telephone dialing system (ATDS) to place
a call or send a text message to a cell phone without the recipient’s “prior express consent.”
66
The
type of consent depends on the nature of the call or text. Consent generally can be revoked by any
reasonable method. However, some courts recently have considered whether revocation may be
restricted in circumstances where the consent is included on a bilateral agreement.
67
There are two types of prior consent provided for under the TCPA:
Prior express consent is required to place autodialed, non-solicitation calls or texts to a cell
phone.
Prior express written consent is a heightened form of consent, must be evidenced by a written
agreement signed by the call recipient, and is required to place autodialed telemarketing or
advertising calls or texts to a cell phone. The written agreement must include a clear and
conspicuous disclosure informing the consumer signing that:
o By signing the agreement, the consumer is authorizing autodialed telemarketing or
advertising calls or texts; and
o The consumer is not required to sign the agreement as a condition of purchasing any
property, goods, or services.
68
62
AARP, Robocalls, https://www.aarp.org/money/scams-fraud/info-2019/robocalls.html?CMP=KNC-DSO-Adobe-Google-FRD-Ongoing-
Robocalls-NonBrand-Exact-Robocalls&gclid=EAIaIQobChMIlvmq_4Sr7wIVFYvICh2RAwjqEAAYAiAAEgJD4vD_BwE&gclsrc=aw.ds
(last visited Feb. 7, 2022).
63
Simon van Zuylen-Wood, How Robo-Callers Outwitted the Government and Completely Wrecked the Do Not Call List (Jan. 11,
2018), https://www.washingtonpost.com/lifestyle/magazine/how-robo-call-moguls-outwitted-the-government-and-completely-wrecked-
the-do-not-call-list/2018/01/09/52c769b6-df7a-11e7-bbd0-9dfb2e37492a_story.html?utm_term=.8a6e6ea55f32 (Last visited Feb. 7,
2022).
64
AARP, supra note 62.
65
AARP, supra note 62.
66
47 U.S.C. s. 227(b)(1)(A)(iii).
67
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Feb. 7, 2022).
68
Id. STORAGE NAME: h1095c.CIV PAGE: 9
DATE: 2/9/2022
Prior express consent can be written or verbal. Voluntarily providing one’s cellular number also
constitutes prior express consent where:
The individual gives “prior express consent” to be called or texted at the number provided;
The individual has provided his or her number to the party calling or texting; and
There is some relation between the communications and the reason for which an individual
provided his or her number.
69
Prior express written consent is required for calls or texts to cell phones that introduce an
advertisement,
70
or constitute “telemarketing”
71
and are sent using an ATDS. The TCPA’s advertising
prong merely requires introducing, at the most basic level, the commercial availability of a service. In
similar fashion, telemarketing occurs when the context of a text or call indicates that it was initiated and
transmitted to a person for promoting property, goods, or services. Neither the TCPA nor its
implementing regulations requires an explicit mention of a good, product, or service where the
implication of an improper purpose is clear from the context.
72
Revocation of consent is controlled by the consenting party, and may be communicated orally or in
writing by any reasonable means. However, where consent is contractually provided, as is the case in
credit agreements, the parties can bargain to require mutuality or particular revocation methods.
Recently, a number of courts have addressed whether a consumer may unilaterally revoke consent
when it is a term in a bargained-for contract.
73
In 2017, the federal Second Circuit Court of Appeal held that a consumer may not unilaterally revoke
consent in a bargained-for, bilateral contract.
74
The court based its decision on “black-letter” contract
law, referring to a fundamental aspect of contractual relationships that one party may not alter or
revoke a term of a bilateral agreement without the other party’s consent. The court found that a
consumer, having consented to be contacted via an auto-dialer, could not unilaterally revoke consent
without the caller’s permission. Notably, the court distinguished case law from the Third and Eleventh
Circuit Courts of Appeal, where consumers retained their ability to revoke consent because it was given
in credit applications, rather than as part of a bilateral contract.
75
In 2018, a United States District Court in Florida also held that consent provided by contract cannot be
unilaterally revoked.
76
The court noted that no provision in the TCPA indicates that contractually-
granted consent can be unilaterally revoked where it would contradict black-letter contract law. The
court held that a consumer who has consented to auto-dialed communication in a contract for services
cannot later revoke such consent.
77
However, other courts have disagreed, rejecting the argument that consent is irrevocable. In 2018, a
United States District Court in Tennessee adopted the general rule that consumer consent may be
revoked at any time by “any reasonable means.”
78
The court held that consumers retain the ability to
revoke their prior consent despite having a bilateral agreement with the caller. Other courts have also
allowed for revocation of consent by any means in the absence of a contractual restriction on the
means by which a consumer may revoke consent.
79
In December 2020, the U.S. Supreme Court heard oral arguments in a landmark case regarding
whether consumers can sue a company for using an ATDS to text or call the consumers at a phone
69
Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at 7991–92.
70
47 C.F.R. s. 64.1200(f)(1), defines an “advertisement” as “any material advertising the commercial availability or quality of any
property, goods, or services,” and “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”
71
47 C.F.R. s. 64.1200(f)(12).
72
The National Law Review, supra note 67.
73
Id.
74
Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
75
The National Law Review, supra note 67.
76
Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
77
The National Law Review, supra note 67.
78
Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
79
Few v. Receivables Performance Mgmt., Case No. 1:17-CV-2038-KOB, 2018 WL 5923765 at *1 (N.D. Ala. Nov. 13, 2018). STORAGE NAME: h1095c.CIV PAGE: 10
DATE: 2/9/2022
number saved in the company’s system. At issue was the meaning of the TCPA’s prohibition on using
an ATDS to transmit communications to cell phones. The question before the Supreme Court was
“whether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and
‘automatically dial’ telephone numbers, even if the device does not use a random or sequential number
generator.”
80
On April 1, 2021, the Court ruled that to qualify as an ATDS under the TCPA, a device must have the
capacity to either store a telephone number using a random or sequential number generator or produce
a telephone number using a random or sequential number generator. The Court concluded that merely
having the capacity to store numbers and dial them automatically is not enough to make a device
qualify as an ATDS.
81
Currently, the TCPA rules require telemarketers to:
Obtain prior express written consent from consumers before robocalling them;
No longer be able to use an "established business relationship" to bypass the consent
requirement; and
Provide an automated, interactive "opt-out" mechanism during each robocall so consumers can
immediately tell the telemarketer to stop calling.
82
The TCPA includes a private right of action.
83
A caller who places a call to a cell phone without consent
using an ATDS is subject to $500 in damages per call. The damages amount is $1,500 per call if the
court finds that the defendant willfully or knowingly committed the violation.
84
The Florida telephone solicitation law prohibits robocalls without the prior express written consent of the
called party.
85
When the called party has given such consent, robocalls are only allowed in certain
circumstances through the use of 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.
86
Effect of Proposed Changes
CS/CS/HB 1095 defines an “automated system” as a computerized, mechanical, or other technological
system or device that creates a phone number, stores or selects any phone number from any database
or list, and then causes that number to be called. The bill specifies that an automated system includes
any system which operates by “click to call” or where the caller or other person selects numbers off of a
80
Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S., No. 19-511.
81
Id.
82
FCC, supra note 32.
83
47 U.S.C. s. 227(b)(3).
84
Id. at s. 227(b)(3)(B)-(C).
85
S. 501.059(8), F.S.
86
Id. STORAGE NAME: h1095c.CIV PAGE: 11
DATE: 2/9/2022
list to call. An automated system does not include a situation where a user selects numbers from a
contact list or phone log.
The bill defines a “caller” as a natural person who causes a call to be made and who is ready to speak
to the caller at the time the call is made.
The bill clarifies that “consumer goods or services” includes services that are related to personal,
family, or household purposes.
The bill revises the definition of “prior written consent” as it is relates to the type of automated calling
system that is utilized. As such, the bill clarifies that prior written consent means a written agreement
that:
Bears the signature of the called party,
Clearly authorizes the person making or allowing placement of a sales call or text using an
automated system for the selection and dialing of the number or the transmission of a text
message;
Includes a number to which the signatory authorizes a sales call to be delivered; and
Includes certain clear and conspicuous disclosures to the called party.
The bill provides that a signature line with a specified notice to the consumer is presumptively
satisfactory under the requirements established for prior written consent. The notice must be within two
inches of the signature line and must include in at least 12-point bold font, the following language:
By signing below, you authorize [NAME] to place a telephonic sales call to you at
[TELEPHONE PHONE NUMBER] by way of telephone calls, text messages, or voicemail
transmissions using an automated system for the selection and/or dialing of telephone numbers
or the playing of a recorded message when a connection is completed to your phone number.
YOU ARE NOT REQUIRED TO PROVIDE SUCH AUTHORIZATION AS A CONDITION OF
PURCHASING ANY PROPERTY, GOODS, OR SERVICES.
The bill revises the definition of a “signature” to include agreements obtained via a compliant email,
website form, text message, telephone keystroke, or voice recording. The bill also revises the definition
of “unsolicited telephonic sales call" to exclude a telephonic sales call made within 120 days after an
express request of the called party and limits the number of calls and messages to three calls or
messages in response to each response to an inquiry initiated by a called party.
The bill adds a definition of “selection,” to mean to store or randomly produce telephone numbers to be
called and to create a list of called parties without manual intervention. The bill clarifies that the use of
an automated telephone dialing system includes the transmission of live messages or text messages.
Further, the bill provides that in order for a prevailing party to be awarded attorney fees and costs in
civil litigation cases, the subject litigation must result from a violation, rather than from a transaction
involving a violation.
The bill prohibits a telephone solicitor from causing any unsolicited telephonic sales call to be initiated
by the use of any automated system. The bill further prohibits a telephone solicitor from causing any
person other than the caller to initiate a sales call.
The bill provides that it is remedial in nature and applies retroactively to July 1, 2021, and to any
proceeding pending or commenced on or after July 1, 2021. However, the bill specifies that the
provisions under s. 501.059(11), F.S., relating to attorney fees, are not retroactive and only apply
prospectively.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.059, F.S., relating to telephone solicitation.
Section 2: Provides an effective date.
STORAGE NAME: h1095c.CIV PAGE: 12
DATE: 2/9/2022
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have an indeterminate negative fiscal impact on legitimate telemarketers to the extent they
do not currently engage in business practices consistent with the requirements in the bill.
The bill may protect consumers from unwanted and fraudulent telephone solicitations.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not appear to create a need for rulemaking or rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On January 20, 2022, the Regulatory Reform Subcommittee adopted one strike-all amendment, and
one amendment to the strike-all amendment, and reported the bill favorably as a committee substitute.
The committee substitute:
Provides that the bill is remedial in nature and applies retroactively to July 1, 2021, and to any
proceeding pending or commenced on or after July 1, 2021. STORAGE NAME: h1095c.CIV PAGE: 13
DATE: 2/9/2022
This analysis is drafted to the committee substitute as passed by the Regulatory Reform
Subcommittee.
On February 7, 2022, the Civil Justice and Property Rights Subcommittee adopted one strike-all
amendment and reported the bill favorably as a committee substitute. The committee substitute:
Provided definitions for the terms “automated system,” “caller,” and “selection” and amended the
definition for “signature” to include agreements obtained via a compliant email, text message,
telephone keypress, or voice recording.
Provided that a designated signature line with a specific notice is presumptively satisfactory to
meet the requirements of prior express written consent.
Amended the exceptions to an unsolicited telephonic sales call to include a call to a person who
has provided prior express written consent, and to include calls for the purpose of polling or
soliciting ideas and opinions when such polling is done by text message.
Provided that the bill does not prohibit the use of an automated system for the selection and
dialing of phone numbers with live messages or live text messages so long as the call or
message is made in response to an inquiry initiated by the called party. Only three such calls or
messages may be made in response to each inquiry.
Prohibited a telephone solicitor from causing any unsolicited telephonic sales call to be initiated
by the use of any automated system.
Prohibited a telephone solicitor from initiating any calls by anyone other than the caller.
Clarified that the bill is remedial in nature and applies retroactively to July 1, 2021; but, specified
that the amendments made to section 501.059, F.S., relating to attorney fees are prospective
only.
This analysis is drafted to the committee substitute as passed by the Civil Justice and Property Rights
Subcommittee.