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: CS/SB 1564
INTRODUCER: Commerce and Tourism Committee and Senator Hutson
SUBJECT: Telephone Solicitation
DATE: January 25, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McKay CM Fav/CS
2. RI
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
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.
The law also includes Do-Not-Call provisions, and similar consumer protections.
CS/SB 1564 makes the following changes to s. 501.059, F.S., regarding telephone solicitations:
Amends the definition of an “automated system” that is subject to s. 501.059, F.S., to include
only those that select and dial telephone numbers, play a recorded message, transmit a text
message, or transmit a prerecorded voicemail, rather than those that select or dial telephone
numbers;
Classifies telephonic sales calls made 120 days or more after the called party’s express
request for such a call as an unsolicited telephonic sales call;
Removes telephonic sales calls and text messages that poll or solicit the expression of ideas,
opinions, or votes from regulation as an unsolicited telephonic sales call subject to the Do-
Not-Call list regulations;
REVISED: BILL: CS/SB 1564 Page 2
Limits the number of calls or messages that are made using an automated telephone dialing
system with live messages or text messages in response to an inquiry by the called party to
two per inquiry, but expressly provides that such calls are not prohibited pursuant to s.
501.059(8), F.S.; and
Declares the bill as remedial in nature and applies the amendments made by the bill
retroactively to July 1, 2021, and to any proceeding pending or commenced on or after July
1, 2021.
The bill takes effect upon becoming law.
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.
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. 241, 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. 24, 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. 24,
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. 24, 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. 24, 2022). BILL: CS/SB 1564 Page 3
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
$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;
7
Chapter 2021-185, s. 1, Laws of Fla.
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. 24, 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 (DACS), Florida Do Not Call,
https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Jan. 24, 2022).
12
Federal Trade Commission, National Do Not Call Registry, https://www.donotcall.gov/ (last visited Jan. 24, 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 BILL: CS/SB 1564 Page 4
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.
Florida Do Not Call Act
Do Not Call List
The Department also administers the Florida Do Not Call Act (also called the “Do Not Call
List”), which prohibits unsolicited phone calls and text messages.
16
Residents who do not wish to
receive sales calls may request to have their residential, mobile, or paging device telephone
number included on the department’s list.
17
A communication is unsolicited, and therefore prohibited under the Do Not Call List, unless the
contact is made:
At the consumer’s request;
By a charitable or political organization that is seeking donations;
As part of a survey, or for the purpose of research seeking an opinion;
To a person with whom the telephone solicitor has a prior existing business relationship;
In connection with an existing debt or contract for which payment is due; or
By a newspaper publisher, or his or her agent or employee, in connection with the publisher’s
business.
18
Continued Solicitations
Section 501.059, F.S., further prohibits a telephone solicitor
19
from calling, text messaging,
sending a direct voicemail transmission, or using automated telephone equipment to contact any
consumer who has previously communicated to the solicitor that he or she does not wish to
receive a telephone call, whether or not he or she is part of the Do Not Call List. 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.
Penalties
Either the Department of Agriculture and Consumer Services or the Office of the Attorney
General may bring an action against a telephone solicitor who violates the provisions of s,
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.
20
numbers, or to play a recorded message; includes the telephone number authorized to be called; and includes a specific
informed disclosure statement.”
16
See, s. 501.059, F.S. DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited Jan. 24, 2022).
17
Section 501.059(3)-(4), F.S.
18
Section 501.059(1)(k), F.S.
19
Section 501.059(1)(i), F.S., defines a “telephone solicitor” as a natural person or business that does business in this state by
making or causing to be made a telephone sales call.
20
Section 501.059(9), F.S. BILL: CS/SB 1564 Page 5
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.
21
Federal Law
Telephone Consumer Protection Act
22
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,
23
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;
24
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.
25
This
specific provision does not apply to residential phone lines.
26
The TCPA’s protections extend to text messaging in the same manner that they apply to
telephone calls.
27
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
21
Sections 501.059(10)-(11), F.S.
22
47 U.S.C. § 227. See also, 47 CFR § 64.1200 (2012).
23
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. 24, 2022).
24
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.
25
FCC, 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7999, para. 4 (Jun. 18, 2015).
26
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).
27
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. 24, 2022). BILL: CS/SB 1564 Page 6
such numbers.”
28
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.
29
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.
30
The TCPA grants a private right of action to pursue actual monetary damages or up to $500 per
violation.
31
State attorneys general and the FCC also have jurisdiction to investigate and file civil
claims based on violations of the TCPA.
32
Federal Do Not Call Program
33
The FTC, in concert with the FCC, administers the National Do Not Call Program.
34
Telephone
solicitors may not contact a consumer who participates in the National Do Not Call Program,
unless the calls are:
35
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
36
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.
37
The FCC has taken enforcement actions totaling
$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.
38
To protect individual privacy concerns, an individual caller may still request to hide his or her
phone number when making a call.
39
28
47 U.S.C. § 227(b)(1)(A).
29
Facebook, Inc. v. Duguid, 141 S. Ct. 193 (2020).
30
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. 24, 2022).
31
47 U.S.C. § 227 (c)(5).
32
47 U.S.C. § 227 (f).
33
See, 15 U.S.C. § 6101.
34
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. 24, 2022).
35
47 U.S.C. § 227(a)(4); See also, 47 C.F.R. § 64.1200 (2012).
36
47 U.S.C. § 227 (e).
37
See, 47 CFR § 64.1604.
38
Federal Communications Commission, The FCC’s Push to Combat Robocalls & Spoofing, https://www.fcc.gov/spoofed-
robocalls (last visited Jan. 24, 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. 24, 2022).
39
47 CFR § 64.1601. BILL: CS/SB 1564 Page 7
III. Effect of Proposed Changes:
Prior Written Consent
The 2021 changes to s. 501.059, F.S., require prior express written consent to place a 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 is required whether or not the
caller and consumer had a prior business relationship.
CS/SB 1546 narrows the scope of those telephonic sales calls that are required to obtain the
called party’s prior express written consent prior to being placed by limiting the types of
automated systems subject to s. 501.059, F.S., to those that select and dial telephone numbers,
rather than those that select or dial the telephone numbers.
40
The bill clarifies that prior express written consent is an agreement that allows telephonic sales
calls that use an automated system to transmit text messages in addition to telephonic sales calls
that use an automated system to select and dial telephone numbers, play a recorded message, or
transmit a prerecorded voicemail.
Additionally, the bill adds a provision that permits the use of an automated telephone dialing
system with live messages or text messages if the call or message is made solely in response to
an inquiry initiated by the called party. However, only two of these calls or messages may be
made in response to each inquiry. This language is substantively similar to language deleted by
SB 1120 (2021). It is unclear how this provision will interact with s. 501.059(8)(a), F.S.’s
prohibition of telephonic sales calls that involve an automated system for the selection and
dialing of telephone numbers…without the prior express written consent of the called party,
since the terminology is similar, but not consistent.
Unsolicited Telephonic Sales Calls
The bill amends the term “unsolicited telephonic sales call” to additionally exclude:
Telephonic sales calls made within 120 days after an express request of the called party,
rather than “in response to the request;” and
Telephonic sales calls other than those “limited to polling or soliciting the expression of
ideas, opinions, or votes, including when such polling or soliciting is made by text message.”
Therefore, a person who makes a telephonic sales call that falls into one of the above exclusions
from the definition of an “unsolicited telephonic sales call” is no longer required to:
Identify himself or herself by his or her true first and last names and the business on whose
behalf he or she is soliciting immediately upon making contact by telephone with the person
who is the object of the telephone solicitation;
41
or
40
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 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. 24, 2022).
41
Section 501.059(2), F.S. BILL: CS/SB 1564 Page 8
Adhere to Florida’s Do-Not-Call list regulations.
42
Clarifications
The bill clarifies a term by substituting “person called” with the defined term, “called party.”
The bill 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.
Effective Date and Retroactivity
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.
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:
Retroactive Application of Law and Expression of Remedial Nature
Under Florida law, statutes are presumed to operate prospectively, not retroactively. In
other words, statutes generally apply only to actions that occur on or after the effective
date of the legislation, not before the legislation becomes effective.
The Florida Supreme Court has noted that, under the rules of statutory construction, if
statutes are to operate retroactively, the Legislature must clearly express that intent for
42
Section 501.059(3)-(4), F.S. BILL: CS/SB 1564 Page 9
the statute to be valid.
43
When statutes that are expressly retroactive have been litigated
and appealed, the courts have been asked to determine whether the statute is remedial in
nature so as to require application to cases that were pending at the time the statute went
into effect. Generally, “the presumption applied to procedural and remedial statutes is
that they are to apply to pending cases.”
44
Conversely, a law that affects substantive
rights by creating substantive new rights or imposing new legal burdens is presumed to
apply prospectively.
45
In a recent Florida Supreme Court case, the Court acknowledged that “[t]he distinction
between substantive and procedural (remedial) law is neither simple nor certain.”
46
The
Court further acknowledged that their previous pronouncements regarding the
retroactivity of procedural laws have been less than precise and have been unclear.
47
Courts, however, have invalidated the retroactive application of a statute if the statute
impairs vested rights, creates new obligations, or imposes new penalties.
48
Still, in other
cases, the courts have permitted statutes to be applied retroactively if they do not create
new, or take away, vested rights, but only operate to further a remedy or confirm rights
that already exist.
49
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
The bill adds language to subsection 501.059(8)(e), F.S., which permits the use of “automated
telephone dialing system with live messages or text messages” in specific instances. It is unclear
how this will interact with the similar, but inconsistent, terminology found in section
501.059(8)(a), F.S., which requires prior express written consent to make a telephonic sales call
43
Walker & LaBerge, Inc., v. Halligan, 344 So. 2d 239 (Fla. 1977). See also, Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d
1352 (Fla. 1994). However, “[j]ust because the Legislature labels something as being remedial, however, does not make it
so.” See, e.g., State v. Smith, 547 So2d 613 (Fla. 1989); State, Dep’t of Transp. v. Knowles, 402 So.2d 1155 (Fla. 1981).
44
Love at 181, citing Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla. 1994).
45
Arrow Air, Inc., at 424.
46
Love v. State, 286 So. 3d 177, 183 (Fla. 2019) quoting Caple v. Tuttle’s Design-Build, Inc., 753 So. 2d 49, 53 (Fa. 2000).
47
Love at 184.
48
R.A.M. of South Florida, Inc. v. WCI Communities, Inc., 869 So. 2d 1210 (Fla 2004).
49
Ziccardi v. Strother, 570 So. 2d 1319 (Fla. 1990). BILL: CS/SB 1564 Page 10
using an “automated system for the selection and dialing of telephone numbers or the playing of
a recorded message…”.
The bill clarifies that prior express written consent means an agreement that authorizes the
person to place a telephonic sales call using an automated system for transmissions of text
messages, in addition to dialing telephone numbers, playing a recorded message, or transmitting
prerecorded voicemails. However, when the same reference to an automated system is used
elsewhere in 501.059, F.S., it does not make the same clarification.
The new language that excludes polling telephonic sales calls from the definition of an
unsolicited telephonic sales call is not grammatically consistent with the other provisions.
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 Substantial 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.