Florida Banking August 2021

GOVERNMENT RELATIONS

BE CAREFUL WHO AND HOW YOU CALL — FLORIDA ADOPTS A TELEPHONE SOLICITATION LAW

BY ANTHONY DIMARCO, FBA EXECUTIVE VICE PRESIDENT AND DIRECTOR OF GOVERNMENT AFFAIRS

P lease have your counsel review Senate Bill 1120, which unfortunately passed this Session. The new law was signed by the Governor on June 30 and potentially affects every business in Florida. The new law contains two important parts. The first part, which amends the Florida Do Not Call statute, is the more problematic. The intent of this part is to stop unwanted telephone solicitation calls we all hate receiving for auto warranties, taxes, Social Security and the like. Unfortunately, the bill morphed into a bill banning solicitation calls using an automatic dialer without the express written consent of the called party. Part of the concern is the lack of a clear definition of automatic dialer. This lack of a clear definition will lead to a flurry of lawsuits. It appears that this part may be in response to a recent U.S. Supreme Court case involving Facebook. In the Facebook case, a consumer alleged that Facebook violated the federal Telephone Consumer Protection Act (TCPA) by sending him an unsolicited text. Turning on the type of technology used by Facebook to send the text, the Court held that since the technology did not store or produce numbers “using a random or sequential number generator,” it was not an “auto dialer” under the TCPA and, therefore, Facebook was not liable. Notably, neither the current Do Not Call Act nor SB 1120 contain exemptions for financial institutions. In addition, the law placed a new requirement that a company receive “prior express written consent” before making “telephonic sales calls” via phone, text or voicemail using an “automated system for the selection or duality of telephone numbers.” To have “prior express written consent,” a financial institution, among other things, would have to have the signature of the consumer and provide them with a document containing a clear and conspicuous disclosure explaining that they are

authorizing telephonic sales calls. The law also creates a rebuttable presumption that any call made to a Florida area code is a call made to a Florida resident. The first part’s other concern is its private right of action for violation of the law. There are three possible outcomes should a company be found guilty of violating the law: To enjoin the action, to impose the greater of the amount of actual damages or $500, or to pay triple the amount if the judge finds that the action was intentional. Moreover, the lawyer need not prove any damages, only that the call was made from an automatic dialer without prior express written consent. As you can imagine, this is a class action lawyer’s dream because the attractiveness of the private right of action means that lawyers can now bring state based class actions, as opposed to previously having to rely solely on the TCPA to seek redress. There are exemptions to the law that apply to our industry including a call to a prior or existing customer; however, the case law is very slim on the definition of a prior customer. The other possible exemption is to collect an existing debt. The first part of the bill will be heavily litigated. Please take the necessary steps to comply with the bill. The second part of the bill amends the Florida Telemarketing Act by changing the permissible call times, changing the number of calls a debtor may receive in any 24-hour period, and prohibiting the use of another telephone number in caller ID to hide who is calling. Please review this part as well to ensure compliance. I wish to thank FBA General Counsel Ginny Childs for her help with this article. Once again, please check with your own counsel for a legal opinion. I am sure that the business community will revisit this bill next Session if it becomes law. We will update you on any changes that we can get next Session.

14 — FLORIDA BANKING THE VOICE OF FLORIDA BANKING