The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Commerce and Tourism
BILL: SB 1564
INTRODUCER: Senator Hutson
SUBJECT: Telephone Solicitation
DATE: January 21, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Pre-meeting
2. RI
3. RC
I. Summary:
Section 501.059, F.S., prohibits telephonic sales calls that:
Use an automated system for the selection or dialing of telephone numbers or playing a
recorded message to a number without the prior express written consent of the called party;
Fail to transmit the originating telephone number and, when possible, name of the solicitor;
or
Alter the voice of the caller in order to defraud, confuse, or injure the telephone call
recipient.
SB 1564 limits the requirement for prior express written consent of the called party to only
unsolicited calls that use an automated system for the selection and dialing of a telephone
number or to play a recorded message. Therefore, the following types of telephonic sales calls
will no longer require prior express written consent of the called party:
Those made within 120 days after an express request of the called party;
Those made in connection with an existing debt or contract, if payment or performance is not
yet completed;
Those made to a person with whom the caller has a prior or existing business relationship; or
Those made by a newspaper publisher in connection with its business.
All other unsolicited telephonic sales calls that use an automated system will require prior
express written consent.
Additionally, the bill amends the definition of an “automated [telephone dialing] system” that is
subject to s. 501.059, F.S., to include only those that select and dial telephone numbers or play a
recorded message, rather than those that select or dial telephone numbers.
The bill takes effect upon becoming law.
REVISED: BILL: SB 1564 Page 2
II. Present Situation:
Unsolicited Phone Calls
Consumers are often inundated with unwanted calls. In fiscal year 2021, the Federal Trade
Commission (FTC) received 388,227 complaints from Florida consumers about unwanted
telephone calls.
1
The Federal Communications Commission (FCC) reports that unwanted calls
constitute their top consumer complaint.
2
Unwanted calls can come in many forms, including
robocalls
3
, which use an “automatic telephone dialing system,”
4
referred to as an autodialer, and
play a recorded message upon connection with the consumer; “spoofing” or “spoofed calls,”
which transmit falsified information to a consumer’s caller ID to disguise the solicitor’s identity;
and unwanted telemarketing calls.
5
State and federal action to combat these issues are limited because there are legitimate and legal
uses of this technology. For example, a doctor’s office may legally use a robocall to remind one
of an upcoming appointment.
6
Additionally, some solicitors act outside the scope of federal or
state enforcement authority.
Florida’s SB 1120 (2021)
In 2021, the Florida Legislature updated s. 501.059, F.S., and the Florida Telemarketing Act, s.
501.601, F.S., et. seq, to further address some of these issues facing consumers.
7
Section 501.059, F.S., currently requires all sales telephone calls, text messages, and direct-to-
voicemail transmissions made with an autodialer that is capable of either selecting or dialing the
recipient’s number to have the receiving consumer’s prior express written consent. Additionally,
such calls require prior consent if they will play a recorded message upon connection with the
recipient. Aggrieved parties can sue under this section to recover actual monetary damages or
1
Federal Trade Commission, Do Not Call Data Book 2020 (Nov. 2021),
https://www.ftc.gov/system/files/documents/reports/national-do-not-call-registry-data-book-fiscal-year-
2021/dnc_data_book_2021.pdf (last visited Jan. 21, 2022).
2
Federal Communications Commission, Stop Unwanted Robocalls and Texts (Mar. 17, 2021),
https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts (last visited Jan. 21, 2022).
3
“At the FCC, we use the term ‘robocalls’ to refer not to just prerecorded calls but also autodialed calls, regardless of
whether the call is live or prerecorded.” Stopping Fraudulent Robocall Scams: Can More Be Done?, Hearing Before the
Senate Subcomm. on Cons. Protect., Product Safety, and Ins. of the Comm. on Commerce, Science, and Transportation,
130th Cong. (July 10, 2013) (Statement of Eric J. Bash, Associate Chief, Enforcement Bureau, Federal Communications
Commission) https://www.govinfo.gov/content/pkg/CHRG-113shrg85765/pdf/CHRG-113shrg85765.pdf (last visited Jan. 21,
2022).
4
An “automatic telephone dialing system” or “autodialer” is equipment that has t he capacity to produce or store phone
numbers using a random or sequential number generator, and to call those phone numbers. 47 U.S.C. § 227(a)(1).
5
“Fraudsters have also further exploited caller ID spoofing, which induces the consumer to pick up the phone, while at the
same time enabling the scammer to hide its identity and location.” Stopping Fraudulent Robocall Scams, Hearing, supra note
3 (Statement of Lois Greisman, Associate Director, Division of Marketing Practices, Bureau of Consumer Protection, Federal
Trade Commission).
6
Federal Communication Commission, Consumer and Governmental Affairs Bureau, Report on Robocalls (Feb. 2019), CG
Docket No. 17-59, https://www.fcc.gov/document/fcc-issues-report-illegal-robocalls (last visited Jan. 21, 2022). See also,
Federal Communications Commission, Stop Unwanted Calls and Texts--Spoofing, supra note 2.(Mar. 2, 2021)
https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Jan. 21, 2022).
7
Chapter 2021-185, s. 1, Laws of Fla. BILL: SB 1564 Page 3
$500, plus attorney fees and costs. Additionally, a court may triple these damages if the
underlying violation is willfully or knowingly performed.
One entity reports that this 2021 change to the FTSA has resulted in at least 100 class action
complaints against those who make telephone sales calls since July 2021.
8
Florida Law (Section 501.059, F.S.)
Generally
Section 501.059, F.S., governs telephone solicitors—those who make or cause to be made
telephonic sales calls in this state.
9
A telephonic sales call includes solicitations via telephone
calls, text messages, and direct-to-voicemail transmissions.
10
For example, the section requires telephone solicitors to:
Identify themselves and the businesses on whose behalf they make a telephone solicitation
call immediately upon making contact with the person called;
Adhere to the Do Not Call lists maintained by the Florida Department of Agriculture
Consumer Services
11
and the Federal Trade Commission;
12,13
Honor consumers’ requests to not receive any further telephone calls, text messages, or voice
mail transmissions. However, this prohibition applies only to calls made by or on behalf of a
seller who offers goods or services or a charity that solicits a charitable contribution.
14
Additionally, section 501.059(8), F.S., prohibits telephonic sales calls that:
Use an automated system for the selection or dialing of telephone numbers or playing a
recorded message to a number without the prior express written consent
15
of the called party;
Fail to transmit the originating telephone number and, when possible, name of the solicitor;
or
Alter the voice of the caller in order to defraud, confuse, or injure the telephone call
recipient.
Penalties
Either the Department of Agriculture and Consumer Services and the Office of the Attorney
General may bring an action against a telephone solicitor who violates the provisions of s,
8
Eric Troutman, TCPAWorld, The FTSA Claims are Still Pouring In: Florida Mini TCPA Continues to Generate Huge
Volume of Litigation (Dec. 13, 2021), https://tcpaworld.com/2021/12/13/the-ftsa-claims-are-still-pouring-in-florida-mini-
tcpa-continues-to-generate-huge-volume-of-litigation/ (last visited Jan. 21, 2022).
9
Section 501.059(1)(i), F.S.
10
Section 501.059(1)(j), F.S.
11
Florida Department of Agriculture and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-
Resources/Florida-Do-Not-Call (last visited Jan. 21, 2022).
12
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Jan. 21, 2022).
13
See, ss. 501.059(3)-(4), F.S.
14
Section 501.059(5), F.S.
15
“Prior express written consent” is defined by s. 501.059(1)(g) as “a written agreement that bears the signature of the called
party; clearly authorizes receipt of a telephonic sales call made using an automated system to selected or dial the telephone
numbers, or to play a recorded message; includes the telephone number authorized to be called; and includes a specific
informed disclosure statement.” BILL: SB 1564 Page 4
501.059, F.S. Each violation is subject to a civil penalty with a maximum fine of $10,000 per
violation, or an administrative fine with a maximum of $1,000 per violation, in addition to
attorney’s fees and costs.
16
In addition, a private citizen may file a private civil action to either enjoin the violation or
recover actual damages, or $500, whichever is greater, in addition to attorney’s fees and costs.
This civil penalty may be tripled by the court if it finds that the defendant knowingly or willfully
committed the violation.
17
Federal Law
Telephone Consumer Protection Act
18
The Telephone Consumer Protection Act of 1991 (TCPA) protects U.S. consumers from
unwanted communications by restricting the use of autodialers, prerecorded sales messages, and
unsolicited sales calls, text messages, or faxes.
The TCPA prohibits telephone solicitations that:
Are made to residences before 8 a.m. and after 9 p.m.;
Fail to provide the consumer with the solicitor’s identity, including his or her true phone
number via caller identification service,
19
and an opportunity to opt out of the current call,
and all future calls, made by that solicitor;
Send pre-recorded messages to a residential line without the consumer’s prior express
consent, which may be on paper or through electronic means, including website forms or a
telephone keypress;
20
and
Use an autodialer or pre-recorded messages to a cellular, emergency, or hospital room line
without prior express consent. Any telemarketing calls made to a cellular telephone number
require written prior express consent; all others require either oral or written consent.
21
This
specific provision does not apply to residential phone lines.
22
16
Section 501.059(9), F.S.
17
Sections 501.059(10)-(11), F.S.
18
47 U.S.C. § 227. See also, 47 CFR § 64.1200 (2012).
19
47 U.S.C. § 227(b)(2)(d). See also, 47 C.F.R. § 64.1601(e). See also, Federal Communications Commission, Public Notice:
FCC’s Caller ID Rules for Telemarketers Become Effective (Jan. 29, 2004)
https://apps.fcc.gov/edocs_public/attachmatch/DA-04-206A1.pdf (last visited Jan. 21, 2022).
20
Federal Communication Commission, Stop Unwanted Robocalls and Texts, supra note 2. See also, 47 CFR §
64.1200(a)(7)(i)(B), (b)(3). Certain calls made to a residential line, such as those by a tax-exempt
nonprofit organization or calls that are subject to HIPAA may be made without prior express consent.
21
FCC, 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7999, para. 4 (Jun. 18, 2015).
22
In 2015, language was added to the TCPA to allow robocalls and autodialed calls to cell phones for the purpose of
collecting a debt owed to the U.S. government. See 47 U.S.C. § 227(b)(1)(A)(iii). This provision was severed from the law
by the U.S. Supreme Court in 2020 based on their finding that it was a content-specific speech regulation in violation of the
first amendment. The Court left the TCPA’s prohibition of robocalls and autodialed calls to cell phones intact. Barr v.
American Assc. Of Political Consultants, Inc., 140 S. Ct. 2335 (2020). See also, 47 CFR § 64.1200(f)(8). BILL: SB 1564 Page 5
The TCPA’s protections extend to text messaging in the same manner that they apply to
telephone calls.
23
The TCPA defines autodialers 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.”
24
The U.S. Supreme Court recently limited the effect of the TCPA by clarifying
that it only regulates autodialers that have the capacity either to store, or to produce, a telephone
number using a random or sequential number generator.
25
This limits the TCPA’s regulations to
the now obsolete sequential number dialer style of autodialer, versus the predictive dialing
technology that most businesses use today.
26
The TCPA grants a private right of action to pursue actual monetary damages or up to $500 per
violation.
27
State attorneys general and the FCC also have jurisdiction to investigate and file civil
claims based on violations of the TCPA.
28
Federal Do Not Call Program
29
The FTC, in concert with the FCC, administers the National Do Not Call Program.
30
Telephone
solicitors may not contact a consumer who participates in the National Do Not Call Program,
unless the calls are:
31
Made with a consumer’s prior, express permission;
Informational in nature, such as those made to convey a utility outage, school closing, or
flight information; or
Made by a tax-exempt organization.
Truth in Caller ID Act
32
The Truth in Caller ID Act of 2009 protects consumers by prohibiting any person from
transmitting misleading or inaccurate caller ID information (call spoofing) with the intent to
defraud, cause harm, or wrongfully obtain anything of value. The FCC investigates and
prosecutes violations of the act under its rules.
33
The FCC has taken enforcement actions totaling
23
FCC, 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7999, para. 2 (Jun. 18, 2015); FCC, FCC Strengthens
Consumer Protections Against Unwanted Calls and Texts (Jun. 18, 2015)
https://apps.fcc.gov/edocs_public/attachmatch/DOC-333993A1.pdf (last visited Jan. 21, 2022).
24
47 U.S.C. § 227(b)(1)(A).
25
Facebook, Inc. v. Duguid, 141 S. Ct. 193 (2020).
26
Amanda Shanor, SCOTUSblog, Supreme Court Sides with Facebook in Narrowing the Federal Robocall Ban (Apr. 1,
2021), https://www.scotusblog.com/2021/04/supreme-court-sides-with-facebook-in-narrowing-the-federal-robocall-ban/ (last
visited Jan. 21, 2022).
27
47 U.S.C. § 227 (c)(5).
28
47 U.S.C. § 227 (f).
29
See, 15 U.S.C. § 6101.
30
Federal Communications Commission, Stop Unwanted Calls and Texts (Mar. 2, 2021),
https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Jan. 21, 2022).
31
47 U.S.C. § 227(a)(4); See also, 47 C.F.R. § 64.1200 (2012).
32
47 U.S.C. § 227 (e).
33
See, 47 CFR § 64.1604. BILL: SB 1564 Page 6
$450 million in fines, in recent years against telemarketers for call spoofing violations—of note,
the FCC imposed its largest fine ever against a Florida-based timeshare marketing operation.
34
To protect individual privacy concerns, an individual caller may still request to hide his or her
phone number when making a call.
35
III. Effect of Proposed Changes:
The 2021 changes to s. 501.059, F.S., required prior express written consent to place any
telephonic sales call to any consumer, if the call would be made using an automated system to
select or dial the telephone number, or to play a recorded message. This consent was required
whether or not the caller and consumer had a prior business relationship.
SB 1564 no longer requires a consumer’s prior express written consent to place a telephonic
sales call via an automated system. Section 1 amends s. 501.059, F.S., to instead require prior
express written consent of the called party only for unsolicited telephonic sales calls that use an
automated system for the selection and dialing of telephone numbers or to play a recorded
message. An unsolicited telephonic sales call is any telephonic sales call, except for the
following:
One made within 120 days after an express request of the called party;
One made in connection with an existing debt or contract, if payment or performance is not
yet completed;
One made to a person with whom the solicitor has a prior or existing business relationship; or
One made by a newspaper publisher in connection with its business.
Therefore, a person who makes a telephonic sales call that falls into one of the above four
categories that are excluded from the definition of an “unsolicited telephonic sales call” is no
longer required to have prior express written consent to place the call using an automated system
for the selection and dialing of telephone numbers or for the playing of a recorded message. All
other telephonic sales calls will be required to have obtained prior express written consent.
The bill also now requires a person who makes a telephonic sales call to a consumer who has
requested such a call to do so within 120 days after the request, rather than “in response to the
request.” This will classify certain calls as unsolicited calls that were not previously classified as
such.
The bill changes the definition of an automated system used to select or dial a telephone number
or play a recorded message upon connection with the called party to a system that selects and
dials a telephone number.
36
34
Federal Communications Commission, The FCC’s Push to Combat Robocalls & Spoofing, https://www.fcc.gov/spoofed-
robocalls (last visited Jan. 21, 2022). See also, Federal Communications Commission, FCC Fines Massive Neighbor
Spoofing Robocall Operation $120 Million (May 10, 2018) https://www.fcc.gov/document/fcc-fines-massive-neighbor-
spoofing-robocall-operation-120-million (last visited Jan. 21, 2022).
35
47 CFR § 64.1601.
36
According to one article, the “or” definition is less likely to capture automated systems that select telephone numbers and
then allow a human to dial the number. See Daniel Blynn and Liz Clark Rinehart, Florida Legislature to the Rescue? House BILL: SB 1564 Page 7
The bill also clarifies a term by substituting “person called” with the defined term, “called
party.”
The bill takes effect upon becoming law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Businesses that use automated systems to conduct telephone solicitation calls via phone
call, text message, or direct-to-voicemail transmission, may feel more certain about the
legality of their practices as a result of the change of the definition of an automated
system that is subject to s. 501.059, F.S. This may result in more telephonic solicitations
made to Florida-based phone numbers by entities who seek to comply with existing state
and federal laws. This change will likely not impact the number and frequency of illegal
robocalls made into the state.
Private individuals will have fewer grounds on which to file a private civil claim against
entities they feel have violated s. 501.059, F.S.
Bill Proposed to Fix the Florida Telephone Solicitation Act’s Autodialer Provision (Jan. 14, 2022),
https://www.jdsupra.com/legalnews/florida-legislature-to-the-rescue-house-7860376/ (last visited Jan. 21, 2022). BILL: SB 1564 Page 8
C. Government Sector Impact:
The courts may see a decrease in civil actions filed pursuant to s. 501.059, F.S.
Additionally, the Florida Department of Agriculture and Consumer Services and the
Office of the Attorney General may see a decrease in investigations of violations of s.
501.059, F.S.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 501.059 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.