This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0761b.CJS
DATE: 3/24/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 761 Telephone Solicitation
SPONSOR(S): Fabricio
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development
Subcommittee
12 Y, 0 N Thompson Anstead
2) Civil Justice Subcommittee Mathews Jones
3) Commerce Committee
SUMMARY ANALYSIS
Chapter 501, part IV, of the Florida Telemarketing Act (FTA), regulates telemarketers and 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. Florida law also prohibits telephonic
sales calls that use an automated system for the selection or dialing of telephone numbers or the playing of
recorded messages (robocall) without the prior express written consent of the called party, with some
exceptions. Unsolicited telephonic sales calls and text messages from telemarketers are prohibited. Residents
who do not wish to receive such calls may have their residential, mobile, or paging device telephone number
included on Florida’s Do Not Call List.
HB 761 amends s. 501.059, F.S., to:
Revise the prohibition on telephonic sales calls that use an automated system to specifically include
unsolicited calls using an automatic telephone dialing system for the selection and dialing of telephone
numbers.
Clarify what constitutes clear and conspicuous disclosure requirements.
Define an automatic telephone dialing system as “equipment using a random or sequential number
generator that stores or produces telephone numbers, and dials the stored or produced telephone
numbers.”
Authorize certain acts to qualify as a signature used to provide prior express written consent by a
consumer.
The bill provides that the changes to the statutory sections are remedial in nature and apply retroactively to
July 1, 2021, and to any proceeding pending or commenced on or after July 1, 2021.
The bill does not appear to have a fiscal impact on state or local government.
The effective date of the bill is July 1, 2023.
STORAGE NAME: h0761b.CJS PAGE: 2
DATE: 3/24/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
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 any parent or affiliate entities 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:
8
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.
Accept novelty payments.
9
Employ or be affiliated with an unlicensed salesperson.
Be employed by or affiliated with an unlicensed commercial telephone seller.
Operate without a license.
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. 501.616, F.S.
9
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. STORAGE NAME: h0761b.CJS PAGE: 3
DATE: 3/24/2023
Florida Telemarketing Act - Violations
Violations of the FTA are punishable by a civil fine of up to $10,000 per violation,
10
the imposition of
criminal penalties, including conviction of a felony offense.
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
Do Not Call
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” does not include calls 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 non-profit organizations 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
Dept. of Ag. and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited Mar. 21, 2023).
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: h0761b.CJS PAGE: 4
DATE: 3/24/2023
Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
Complaint Form.
22
Do Not Call - Consent
The law governing telephone solicitations also prohibits automated telephonic sales calls without the
prior express written consent of the called party. Specifically, the law provides that:
A person may not make or knowingly allow a telephonic sales call to be made if
such call involves 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 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
Do Not Call - Violations
A telephone solicitor who violates the DNC provisions is subject to an injunction and a civil penalty
27
with a maximum fine of $10,000 per violation, or an administrative fine
28
of up to $1,000 per violation.
Additionally, a telephone solicitor may be held responsible 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
22
DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Mar. 21, 2023).
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: h0761b.CJS PAGE: 5
DATE: 3/24/2023
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
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
Currently there are a
number of call-blocking applications that provide some relief from unwanted calls and spam calls.
34
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.
35
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.
36
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. Moreover, 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.
37
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.”
38
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.
39
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.
40
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.
41
The ITG encouraged
32
Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-
robocalls (last visited Mar. 21, 2023).
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
CTIA, The Wireless Association, How to Stop Robocalls, https://www.ctia.org/consumer-tips/robocalls (last visited Mar. 21, 2023).
35
32 FCC Rcd 9706 (11).
36
Federal Communications Commission, Stop Unwanted Calls and Texts, https://www.fcc.gov/consumers/guides/stop-unwanted-calls-
and-texts (last visited Mar. 21, 2023).
37
47 C.F.R. s. 64.1601.
38
Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, Pub. L. No. 116-105, 133 Stat. 3274 (2019).
39
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 Mar. 21, 2023).
40
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-developments-
world-call-delivery/ (last visited Mar. 21, 2022).
41
USTelecom, Enforcement Bureau Requests Information on the Status of Private-Led STORAGE NAME: h0761b.CJS PAGE: 6
DATE: 3/24/2023
the FCC to bring aggressive enforcement against robocallers and voice service providers that routinely
refuse to participate in the traceback process.
42
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.”
43
The TRACED Act requires the FCC to issue an annual public notice seeking applicants to serve as the
registered consortium.
44
On August 22, 2022, the FCC selected the Industry Traceback Group (ITG) to
continue to serve as the registered consortium.
45
On September 12, 2022, the FCC announced the signing of an updated Memorandum of
Understanding (MOU) with the Body of European Regulators for Electronic Communications (BEREC)
that expands their current partnership, with a new focus on combatting unwanted robocalls and the
promotion of 5G, 6G and beyond. One of the major topics of mutual interest includes robocall and other
automated calls’ mitigation and prevention.
46
National Do Not Call Registry
Although individual states addressed consumers’ requests to stop unwanted telemarketing calls before
the federal government did,
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 DNC 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. 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 that “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 an 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
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 Mar. 21, 2023).
42
InsideArm, The Latest Developments in the World of Call Delivery, https://www.insidearm.com/news/00047073-latest-developments-
world-call-delivery/ (last visited Mar. 21, 2022).
43
Federal Communications Commission, Report and Order (Aug. 22, 2022) https://tcpaworld.com/wp-
content/uploads/2022/08/RENEWAL-OF-UST-TRACEBACK-GROUP.pdf (last visited Mar. 21, 2023).
44
TRACED Act, s. 13(d)(2).
45
Federal Communications Commission, Report and Order DA 21-1047 (Aug. 25, 2021) https://www.fcc.gov/document/fcc-retains-
industry-traceback-group-robocall-consortium (last visited Mar. 21, 2022).
46
Federal Communications Commission, Press Release, FCC RENEWS AND EXPANDS PARTNERSHIP WITH EUROPEAN
COUNTERPARTS , Sep. 12, 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 Mar. 21, 2023).
49
Contact Compliance Center Corporation, State Do Not Call Lists, https://www.dnc.com/faq/state-do-not-call-lists?page=1 (last visited
Mar. 21, 2022). STORAGE NAME: h0761b.CJS PAGE: 7
DATE: 3/24/2023
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
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 stricter regulations than the TCPA requires for interstate
calls.
53
However, at least one federal court of appeals has held that state regulations and prohibitions of
telemarketing that cross state boundaries are valid.
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
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).
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 Mar. 21, 2023).
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 Mar. 21, 2023).
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 Mar. 21, 2023).
59
S. 817.487, F.S. (2008). STORAGE NAME: h0761b.CJS PAGE: 8
DATE: 3/24/2023
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
US consumers received over 50.3 billion robocalls in 2022, only slightly less than the 50.5 billion total
robocalls received in 2021 despite widespread enforcement efforts by government regulators and state
officials.
62
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.
63
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.
64
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.”
65
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.
66
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.
67
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).
62
PR Newswire, Robocalls Top 50.3 Billion in 2022, Matching 2021 Call Volumes Despite Enforcement Efforts,
https://www.prnewswire.com/news-releases/robocalls-top-50-3-billion-in-2022--matching-2021-call-volumes-despite-enforcement-
efforts-301714297.html#:~:text=IRVINE%2C%20Calif.%2C%20Jan.,government%20regulators%20and%20state%20officials (last
visited Mar. 21, 2023).
63
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 Mar. 21, 2022).
64
AARP, supra note 63.
65
47 U.S.C. s. 227(b)(1)(A)(iii).
66
The National Law Review, Consent and Revocation Under the TCPA, https://www.natlawreview.com/print/article/consent-and-
revocation-under-tcpa (last visited Mar. 21, 2023).
67
Id. STORAGE NAME: h0761b.CJS PAGE: 9
DATE: 3/24/2023
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.
68
Prior express written consent is required for calls or texts to cell phones that introduce an
advertisement,
69
or constitute “telemarketing”
70
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.
71
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.
72
In 2017, the federal Second Circuit Court of Appeals held that a consumer may not unilaterally revoke
consent in a bargained-for, bilateral contract.
73
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 Appeals, where consumers retained their ability to revoke consent because it was
given in credit applications, rather than as part of a bilateral contract.
74
In 2018, a United States District Court in Florida also held that consent provided by contract cannot be
unilaterally revoked.
75
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.
76
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.”
77
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.
78
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
68
Federal Communications Commission, Rules & Regulations Implementing the TCP Act of 1991 et al., 30 FCC Rcd at 7991–92.
69
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.”
70
47 C.F.R. s. 64.1200(f)(12).
71
The National Law Review, supra note 66.
72
Id.
73
Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017).
74
The National Law Review, supra note 67.
75
Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018).
76
The National Law Review, supra note 67.
77
Ammons v. Ally Fin., Inc., Case No. 3:17-cv-00505, 2018 WL 3134619, at *15 (M.D. Tenn. June 27, 2018).
78
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: h0761b.CJS PAGE: 10
DATE: 3/24/2023
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.”
79
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.
80
Specifically, related to consent, 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
Require an automated, interactive "opt-out" mechanism to be used during each robocall so
consumers can immediately tell the telemarketer to stop calling.
81
The TCPA includes a private right of action.
82
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.
83
Specifically, related to consent, the Florida telephone solicitation law:
84
Prohibits robocalls without the prior express written consent of the called party.
When the called party has given such consent, only allows robocalls 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.
Effect of Proposed Changes
HB 761 amends s. 501.059, F.S., to clarify restrictions on unwanted telephone solicitation practices.
The bill defines an “automatic telephone dialing system” as equipment using a random or sequential
number generator that stores or produces telephone numbers and dials the stored or produced
telephone numbers. The bill prohibits unsolicited telephonic sales calls using an automatic telephone
dialing system for the selection and dialing of telephone numbers or the playing of a recorded message
when a connection is completed to a number called without the prior express written consent of the
called party.
The bill also clarifies notice requirements prior to obtaining consent for telephone calls, text messages,
or the transmission of prerecorded voicemails.
The bill revises the definition of “prior express written consent” to:
Replace references to “automated system” with “automatic telephone dialing system."
Replace references to “signatory” with “called party.”
The bill revises what qualifies as a “signature” in a written agreement where a called party provides
prior express written consent to include “an act” that demonstrates express consent under applicable
federal law or state contract law.
79
Facebook, Inc., Petitioner vs. Noah Duguid, et al., U.S., No. 19-511.
80
Id.
81
FCC, supra note 32.
82
47 U.S.C. s. 227(b)(3).
83
Id. at s. 227(b)(3)(B)-(C).
84
S. 501.059(8), F.S. STORAGE NAME: h0761b.CJS PAGE: 11
DATE: 3/24/2023
The bill clarifies that the changes made therein are remedial in nature and apply retroactively to any
proceedings pending or commenced on or after July 1, 2021.
The bill has an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.059, F.S.; providing and revising definitions; prohibiting certain
telephonic sales calls; providing retroactive applicability.
Section 2: Provides the amendments made by the act are remedial in nature and apply
retroactively to July 1, 2021, and to any proceeding pending or commenced on or after
July 1, 2021.
Section 3: Provides an effective date of July 1, 2023.
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: STORAGE NAME: h0761b.CJS PAGE: 12
DATE: 3/24/2023
Section 2 of the bill specifies that it is remedial in nature and, if enacted, will apply retroactively to all
proceedings pending or commenced as of July 1, 2021.
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