Bill Text: FL S1120 | 2021 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Telephone Solicitation

Spectrum: Bipartisan Bill

Status: (Passed) 2021-07-06 - Chapter No. 2021-185 [S1120 Detail]

Download: Florida-2021-S1120-Comm_Sub.html

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       Florida Senate - 2021                             CS for SB 1120
       
       
        
       By the Committee on Regulated Industries; and Senators Gibson
       and Powell
       
       
       
       
       580-03275-21                                          20211120c1
    1                        A bill to be entitled                      
    2         An act relating to telephone solicitation; amending s.
    3         501.059, F.S.; defining terms; prohibiting certain
    4         telephonic sales calls without the prior express
    5         written consent of the called party; removing
    6         provisions authorizing the use of certain automated
    7         telephone dialing systems; providing a rebuttable
    8         presumption for certain calls made to any area code in
    9         this state; providing a cause of action for aggrieved
   10         called parties; authorizing a court to increase an
   11         award for willful and knowing violations; revising
   12         awards of attorney fees and costs for violations to
   13         authorize only a prevailing plaintiff to receive such
   14         an award; amending s. 501.616, F.S.; prohibiting a
   15         commercial telephone seller or salesperson from using
   16         automated dialing or recorded messages to make certain
   17         commercial telephone solicitation phone calls;
   18         revising the timeframe during which a commercial
   19         telephone seller or salesperson may make commercial
   20         solicitation phone calls; prohibiting commercial
   21         telephone sellers or salespersons from making a
   22         specified number of commercial telephone solicitation
   23         phone calls to a person over a specified timeframe;
   24         reenacting s. 501.604, F.S., relating to exemptions to
   25         the Florida Telemarketing Act, to incorporate the
   26         amendment made to s. 501.616, F.S., in a reference
   27         thereto; reenacting s. 648.44(1)(c), F.S., relating to
   28         prohibitions regarding bail bond agent telephone
   29         solicitations, to incorporate the amendment made to s.
   30         501.616, F.S., in a reference thereto; providing an
   31         effective date.
   32          
   33  Be It Enacted by the Legislature of the State of Florida:
   34  
   35         Section 1. Present paragraphs (a) through (e) and (f)
   36  through (i) of subsection (1) of section 501.059, Florida
   37  Statutes, are redesignated as paragraphs (b) through (f) and (i)
   38  through (l), respectively, new paragraphs (a), (g), and (h) are
   39  added to that subsection, and subsections (8) and (10) and
   40  present subsections (11) and (12) are amended, to read:
   41         501.059 Telephone solicitation.—
   42         (1) As used in this section, the term:
   43         (a) “Called party” means a person who is the regular user
   44  of the telephone number that receives a telephonic sales call.
   45         (g) “Prior express written consent” means a written
   46  agreement that:
   47         1. Bears the signature of the called party;
   48         2. Clearly authorizes the person making or allowing the
   49  placement of a telephonic sales call by telephone call, text
   50  message, or voicemail transmission to deliver or cause to be
   51  delivered to the called party a telephonic sales call using an
   52  automated system for the selection or dialing of telephone
   53  numbers, the playing of a recorded message when a connection is
   54  completed to a number called, or the transmission of a
   55  prerecorded voicemail;
   56         3. Includes the telephone number to which the signatory
   57  authorizes a telephonic sales call to be delivered; and
   58         4. Includes a clear and conspicuous disclosure informing
   59  the called party that:
   60         a. By executing the agreement, the called party authorizes
   61  the person making or allowing the placement of a telephonic
   62  sales call to deliver or cause to be delivered a telephonic
   63  sales call to the called party using an automated system for the
   64  selection or dialing of telephone numbers or the playing of a
   65  recorded message when a connection is completed to a number
   66  called; and
   67         b. He or she is not required to directly or indirectly sign
   68  the written agreement or to agree to enter into such an
   69  agreement as a condition of purchasing any property, goods, or
   70  services.
   71         (h) “Signature” includes an electronic or digital
   72  signature, to the extent that such form of signature is
   73  recognized as a valid signature under applicable federal law or
   74  state contract law.
   75         (8)(a) A No person may not shall make or knowingly allow a
   76  telephonic sales call to be made if such call involves an
   77  automated system for the selection or dialing of telephone
   78  numbers or the playing of a recorded message when a connection
   79  is completed to a number called without the prior express
   80  written consent of the called party.
   81         (b) Nothing herein prohibits the use of an automated
   82  telephone dialing system with live messages if the calls are
   83  made or messages given solely in response to calls initiated by
   84  the persons to whom the automatic calls or live messages are
   85  directed or if the telephone numbers selected for automatic
   86  dialing have been screened to exclude any telephone subscriber
   87  who is included on the department’s then-current “no sales
   88  solicitation calls” listing or any unlisted telephone number, or
   89  if the calls made concern goods or services that have been
   90  previously ordered or purchased.
   91         (c) It shall be unlawful for any person who makes a
   92  telephonic sales call or causes a telephonic sales call to be
   93  made to fail to transmit or cause not to be transmitted the
   94  originating telephone number and, when made available by the
   95  telephone solicitor’s carrier, the name of the telephone
   96  solicitor to any caller identification service in use by a
   97  recipient of a telephonic sales call. However, it is shall not
   98  be a violation to substitute, for the name and telephone number
   99  used in or billed for making the call, the name of the seller on
  100  behalf of which a telephonic sales call is placed and the
  101  seller’s customer service telephone number, which is answered
  102  during regular business hours. If a telephone number is made
  103  available through a caller identification service as a result of
  104  a telephonic sales call, the solicitor must ensure that
  105  telephone number is capable of receiving telephone calls and
  106  must connect the original call recipient, upon calling such
  107  number, to the telephone solicitor or to the seller on behalf of
  108  which a telephonic sales call was placed. For purposes of this
  109  section, the term “caller identification service” means a
  110  service that allows a telephone subscriber to have the telephone
  111  number and, where available, the name of the calling party
  112  transmitted contemporaneously with the telephone call and
  113  displayed on a device in or connected to the subscriber’s
  114  telephone.
  115         (c)(d) It shall be unlawful for any person who makes a
  116  telephonic sales call or causes a telephonic sales call to be
  117  made to intentionally alter the voice of the caller in an
  118  attempt to disguise or conceal the identity of the caller in
  119  order to defraud, confuse, or financially or otherwise injure
  120  the recipient of a telephonic sales call or in order to obtain
  121  personal information from the recipient of a telephonic sales
  122  call which may be used in a fraudulent or unlawful manner.
  123         (d) There is a rebuttable presumption that a telephonic
  124  sales call made to any area code in this state is made to a
  125  Florida resident or to a person in this state at the time of the
  126  call.
  127         (10)(a) A called party who is aggrieved by a violation of
  128  this section may bring an action to:
  129         1. Enjoin such violation.
  130         2. Recover actual damages or $500, whichever is greater.
  131         (b) If the court finds that the defendant willfully or
  132  knowingly violated this section or rules adopted pursuant to
  133  this section, the court may, in its discretion, increase the
  134  amount of the award to an amount equal to not more than three
  135  times the amount available under paragraph (a).
  136         (11)(a) If a plaintiff prevails in any civil litigation
  137  resulting from a transaction involving a violation of this
  138  section, the prevailing party, after judgment in the trial court
  139  and exhaustion of all appeals, if any, the plaintiff shall
  140  receive his or her reasonable attorney attorney’s fees and costs
  141  from the defendant nonprevailing party.
  142         (b) The attorney for the prevailing plaintiff party shall
  143  submit a sworn affidavit of his or her time spent on the case
  144  and his or her costs incurred for all the motions, hearings, and
  145  appeals to the trial judge who presided over the civil case.
  146         (c) The trial judge shall award the prevailing plaintiff
  147  party the sum of reasonable costs incurred in the action plus a
  148  reasonable legal fee for the hours actually spent on the case as
  149  sworn to in an affidavit.
  150         (d) Any award of attorney attorney’s fees or costs shall
  151  become a part of the judgment and subject to execution as the
  152  law allows.
  153         (e) In any civil litigation initiated by the department or
  154  the Department of Legal Affairs, the court may award to the
  155  prevailing party reasonable attorney attorney’s fees and costs
  156  if the court finds that there was a complete absence of a
  157  justiciable issue of either law or fact raised by the losing
  158  party or if the court finds bad faith on the part of the losing
  159  party.
  160         (12)(11) Telecommunications companies shall inform their
  161  customers of the provisions of this section. The notification
  162  may be made by:
  163         (a) Annual inserts in the billing statements mailed to
  164  customers; and
  165         (b) Conspicuous publication of the notice in the consumer
  166  information pages of the local telephone directories.
  167         (13)(12) The department may adopt rules to implement this
  168  section.
  169         Section 2. Subsection (6) of section 501.616, Florida
  170  Statutes, is amended to read:
  171         501.616 Unlawful acts and practices.—
  172         (6) A commercial telephone seller or salesperson may not
  173  make any of the following types of phone calls, including calls
  174  made through automated dialing or recorded messages:
  175         (a) A commercial telephone solicitation phone call before 8
  176  a.m. or after 8 9 p.m. local time in at the called person’s time
  177  zone location.
  178         (b) More than three commercial telephone solicitation phone
  179  calls from any number to a person over a 24-hour period on the
  180  same subject matter or issue, regardless of the phone number
  181  used to make the call.
  182         Section 3. For the purpose of incorporating the amendment
  183  made by this act to section 501.616, Florida Statutes, in a
  184  reference thereto, section 501.604, Florida Statutes, is
  185  reenacted to read:
  186         501.604 Exemptions.—The provisions of this part, except ss.
  187  501.608 and 501.616(6) and (7), do not apply to:
  188         (1) A person engaging in commercial telephone solicitation
  189  where the solicitation is an isolated transaction and not done
  190  in the course of a pattern of repeated transactions of like
  191  nature.
  192         (2) A person soliciting for religious, charitable,
  193  political, or educational purposes. A person soliciting for
  194  other noncommercial purposes is exempt only if that person is
  195  soliciting for a nonprofit corporation and if that corporation
  196  is properly registered as such with the Secretary of State and
  197  is included within the exemption of s. 501(c)(3) or (6) of the
  198  Internal Revenue Code.
  199         (3) A person who does not make the major sales presentation
  200  during the telephone solicitation and who does not intend to,
  201  and does not actually, complete or obtain provisional acceptance
  202  of a sale during the telephone solicitation, but who makes the
  203  major sales presentation and completes the sale at a later face
  204  to-face meeting between the seller and the prospective purchaser
  205  in accordance with the home solicitation provisions in this
  206  chapter. However, if a seller, directly following a telephone
  207  solicitation, causes an individual whose primary purpose it is
  208  to go to the prospective purchaser to collect the payment or
  209  deliver any item purchased, this exemption does not apply.
  210         (4) A licensed securities, commodities, or investment
  211  broker, dealer, or investment adviser, when soliciting within
  212  the scope of his or her license, or a licensed associated person
  213  of a securities, commodities, or investment broker, dealer, or
  214  investment adviser, when soliciting within the scope of his or
  215  her license. As used in this section, “licensed securities,
  216  commodities, or investment broker, dealer, or investment
  217  adviser” means a person subject to license or registration as
  218  such by the Securities and Exchange Commission, by the Financial
  219  Industry Regulatory Authority or other self-regulatory
  220  organization as defined by the Securities Exchange Act of 1934,
  221  15 U.S.C. s. 78l, or by an official or agency of this state or
  222  of any state of the United States. As used in this section,
  223  “licensed associated person of a securities, commodities, or
  224  investment broker, dealer, or investment adviser” means an
  225  associated person registered or licensed by the Financial
  226  Industry Regulatory Authority or other self-regulatory
  227  organization as defined by the Securities Exchange Act of 1934,
  228  15 U.S.C. s. 78l, or by an official or agency of this state or
  229  of any state of the United States.
  230         (5) A person primarily soliciting the sale of a newspaper
  231  of general circulation.
  232         (6) A book, video, or record club or contractual plan or
  233  arrangement:
  234         (a) Under which the seller provides the consumer with a
  235  form which the consumer may use to instruct the seller not to
  236  ship the offered merchandise.
  237         (b) Which is regulated by the Federal Trade Commission
  238  trade regulation concerning “use of negative option plans by
  239  sellers in commerce.”
  240         (c) Which provides for the sale of books, records, or
  241  videos which are not covered under paragraph (a) or paragraph
  242  (b), including continuity plans, subscription arrangements,
  243  standing order arrangements, supplements, and series
  244  arrangements under which the seller periodically ships
  245  merchandise to a consumer who has consented in advance to
  246  receive such merchandise on a periodic basis.
  247         (7) A supervised financial institution or parent,
  248  subsidiary, or affiliate thereof operating within the scope of
  249  supervised activity. As used in this section, “supervised
  250  financial institution” means a commercial bank, trust company,
  251  savings and loan association, mutual savings bank, credit union,
  252  industrial loan company, consumer finance lender, commercial
  253  finance lender, or insurer, provided that the institution is
  254  subject to supervision by an official or agency of this state,
  255  of any state, or of the United States. For the purposes of this
  256  exemption, “affiliate” means a person who directly, or
  257  indirectly through one or more intermediaries, controls or is
  258  controlled by, or is under common control with, a supervised
  259  financial institution.
  260         (8) Any licensed insurance broker, agent, customer
  261  representative, or solicitor when soliciting within the scope of
  262  his or her license. As used in this section, “licensed insurance
  263  broker, agent, customer representative, or solicitor” means any
  264  insurance broker, agent, customer representative, or solicitor
  265  licensed by an official or agency of this state or of any state
  266  of the United States.
  267         (9) A person soliciting the sale of services provided by a
  268  cable television system operating under authority of a franchise
  269  or permit.
  270         (10) A business-to-business sale where:
  271         (a) The commercial telephone seller has been lawfully
  272  operating continuously for at least 3 years under the same
  273  business name and has at least 50 percent of its dollar volume
  274  consisting of repeat sales to existing businesses;
  275         (b) The purchaser business intends to resell or offer for
  276  purposes of advertisement or as a promotional item the property
  277  or goods purchased; or
  278         (c) The purchaser business intends to use the property or
  279  goods purchased in a recycling, reuse, remanufacturing, or
  280  manufacturing process.
  281         (11) A person who solicits sales by periodically publishing
  282  and delivering a catalog of the seller’s merchandise to
  283  prospective purchasers, if the catalog:
  284         (a) Contains a written description or illustration of each
  285  item offered for sale.
  286         (b) Includes the business address or home office address of
  287  the seller.
  288         (c) Includes at least 20 pages of written material and
  289  illustrations and is distributed in more than one state.
  290         (d) Has an annual circulation by mailing of not less than
  291  150,000.
  292         (12) A person who solicits contracts for the maintenance or
  293  repair of goods previously purchased from the person making the
  294  solicitation or on whose behalf the solicitation is made.
  295         (13) A commercial telephone seller licensed pursuant to
  296  chapter 516 or part III of chapter 520. For purposes of this
  297  exemption, the seller must solicit to sell a consumer good or
  298  service within the scope of his or her license and the completed
  299  transaction must be subject to the provisions of chapter 516 or
  300  part III of chapter 520.
  301         (14) A telephone company subject to chapter 364, or
  302  affiliate thereof or its agents, or a telecommunications
  303  business that is regulated by the Florida Public Service
  304  Commission, or a Federal Communications Commission licensed
  305  cellular telephone company or other bona fide radio
  306  telecommunication services provider. For the purposes of this
  307  exemption, “affiliate” means a person who directly, or
  308  indirectly through one or more intermediaries, controls or is
  309  controlled by, or is under common control with, a telephone
  310  company subject to chapter 364.
  311         (15) A person who is licensed pursuant to chapter 497 and
  312  who is soliciting within the scope of the license.
  313         (16) An issuer or a subsidiary of an issuer that has a
  314  class of securities which is subject to s. 12 of the Securities
  315  Exchange Act of 1934, 15 U.S.C. s. 78l, and which is either
  316  registered or exempt from registration under paragraph (A),
  317  paragraph (B), paragraph (C), paragraph (E), paragraph (F),
  318  paragraph (G), or paragraph (H) of subsection (g)(2) of that
  319  section.
  320         (17) A business soliciting exclusively the sale of
  321  telephone answering services provided that the telephone
  322  answering services will be supplied by the solicitor.
  323         (18) A person soliciting a transaction regulated by the
  324  Commodity Futures Trading Commission if the person is registered
  325  or temporarily licensed for this activity with the Commodity
  326  Futures Trading Commission under the Commodity Exchange Act, 7
  327  U.S.C. ss. 1 et seq., and the registration or license has not
  328  expired or been suspended or revoked.
  329         (19) A person soliciting the sale of food or produce as
  330  defined in chapter 500 or chapter 504 if the solicitation
  331  neither intends to result in, or actually results in, a sale
  332  which costs the purchaser in excess of $500.
  333         (20) A person who is registered pursuant to part XI of
  334  chapter 559 and who is soliciting within the scope of the
  335  registration.
  336         (21) A person soliciting business from prospective
  337  consumers who have an existing business relationship with or who
  338  have previously purchased from the business enterprise for which
  339  the solicitor is calling, if the solicitor is operating under
  340  the same exact business name.
  341         (22) A person who has been operating, for at least 1 year,
  342  a retail business establishment under the same name as that used
  343  in connection with telemarketing, and both of the following
  344  occur on a continuing basis:
  345         (a) Either products are displayed and offered for sale or
  346  services are offered for sale and provided at the business
  347  establishment.
  348         (b) A majority of the seller’s business involves the buyer
  349  obtaining such products or services at the seller’s location.
  350         (23) A person who is a registered developer or exchange
  351  company pursuant to chapter 721 and who is soliciting within the
  352  scope of the chapter.
  353         (24) Any person who has been lawfully providing
  354  telemarketing sales services continuously for at least 5 years
  355  under the same ownership and control and who derives 75 percent
  356  of its gross telemarketing sales revenues from contracts with
  357  persons exempted in this section.
  358         (25) A person licensed pursuant to chapter 475 and who is
  359  soliciting within the scope of the chapter.
  360         (26) A publisher, or an agent of a publisher by written
  361  agreement, who solicits the sale of his or her periodical or
  362  magazine of general, paid circulation. The term “paid
  363  circulation” shall not include magazines that are only
  364  circulated as part of a membership package or that are given as
  365  a free gift or prize from the publisher or agent of the
  366  publisher by written agreement.
  367         (27) A person who is a licensed operator or an
  368  identification cardholder as defined in chapter 482, and who is
  369  soliciting within the scope of the chapter.
  370         (28) A licensee, or an affiliate of a licensee, regulated
  371  under chapter 560, the Money Transmitters’ Code, for foreign
  372  currency exchange services.
  373         Section 4. For the purpose of incorporating the amendment
  374  made by this act to section 501.616, Florida Statutes, in a
  375  reference thereto, paragraph (c) of subsection (1) of section
  376  648.44, Florida Statutes, is reenacted to read:
  377         648.44 Prohibitions; penalty.—
  378         (1) A bail bond agent or temporary bail bond agent may not:
  379         (c) Initiate in-person or telephone solicitation after 9:00
  380  p.m. or before 8:00 a.m., in the case of domestic violence
  381  cases, at the residence of the detainee or the detainee’s
  382  family. Any solicitation not prohibited by this chapter must
  383  comply with the telephone solicitation requirements in ss.
  384  501.059(2) and (4), 501.613, and 501.616(6).
  385         Section 5. This act shall take effect July 1, 2021.