CS for SB 1120                                   First Engrossed
       
       
       
       
       
       
       
       
       20211120e1
       
    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; amending s.
   12         501.616, F.S.; prohibiting a commercial telephone
   13         seller or salesperson from using automated dialing or
   14         recorded messages to make certain commercial telephone
   15         solicitation phone calls; revising the timeframe
   16         during which a commercial telephone seller or
   17         salesperson may make commercial solicitation phone
   18         calls; prohibiting commercial telephone sellers or
   19         salespersons from making a specified number of
   20         commercial telephone solicitation phone calls to a
   21         person over a specified timeframe; prohibiting
   22         commercial telephone sellers or salespersons from
   23         using certain technology to conceal their true
   24         identity; providing criminal penalties; reenacting s.
   25         501.604, F.S., relating to exemptions to the Florida
   26         Telemarketing Act, to incorporate the amendment made
   27         to s. 501.616, F.S., in a reference thereto;
   28         reenacting s. 648.44(1)(c), F.S., relating to
   29         prohibitions regarding bail bond agent telephone
   30         solicitations, to incorporate the amendment made to s.
   31         501.616, F.S., in a reference thereto; providing an
   32         effective date.
   33          
   34  Be It Enacted by the Legislature of the State of Florida:
   35  
   36         Section 1. Present paragraphs (a) through (e) and (f)
   37  through (i) of subsection (1) and present subsections (10),
   38  (11), and (12) of section 501.059, Florida Statutes, are
   39  redesignated as paragraphs (b) through (f) and (i) through (l),
   40  and subsections (11), (12), and (13), respectively, new
   41  paragraphs (a), (g), and (h) are added to subsection (1), a new
   42  subsection (10) is added to that section, and subsection (8) of
   43  that section is amended, to read:
   44         501.059 Telephone solicitation.—
   45         (1) As used in this section, the term:
   46         (a)“Called party” means a person who is the regular user
   47  of the telephone number that receives a telephonic sales call.
   48         (g)Prior express written consent” means a written
   49  agreement that:
   50         1.Bears the signature of the called party;
   51         2.Clearly authorizes the person making or allowing the
   52  placement of a telephonic sales call by telephone call, text
   53  message, or voicemail transmission to deliver or cause to be
   54  delivered to the called party a telephonic sales call using an
   55  automated system for the selection or dialing of telephone
   56  numbers, the playing of a recorded message when a connection is
   57  completed to a number called, or the transmission of a
   58  prerecorded voicemail;
   59         3.Includes the telephone number to which the signatory
   60  authorizes a telephonic sales call to be delivered; and
   61         4.Includes a clear and conspicuous disclosure informing
   62  the called party that:
   63         a.By executing the agreement, the called party authorizes
   64  the person making or allowing the placement of a telephonic
   65  sales call to deliver or cause to be delivered a telephonic
   66  sales call to the called party using an automated system for the
   67  selection or dialing of telephone numbers or the playing of a
   68  recorded message when a connection is completed to a number
   69  called; and
   70         b.He or she is not required to directly or indirectly sign
   71  the written agreement or to agree to enter into such an
   72  agreement as a condition of purchasing any property, goods, or
   73  services.
   74         (h)“Signature” includes an electronic or digital
   75  signature, to the extent that such form of signature is
   76  recognized as a valid signature under applicable federal law or
   77  state contract law.
   78         (8)(a) A No person may not shall make or knowingly allow a
   79  telephonic sales call to be made if such call involves an
   80  automated system for the selection or dialing of telephone
   81  numbers or the playing of a recorded message when a connection
   82  is completed to a number called without the prior express
   83  written consent of the called party.
   84         (b) Nothing herein prohibits the use of an automated
   85  telephone dialing system with live messages if the calls are
   86  made or messages given solely in response to calls initiated by
   87  the persons to whom the automatic calls or live messages are
   88  directed or if the telephone numbers selected for automatic
   89  dialing have been screened to exclude any telephone subscriber
   90  who is included on the department’s then-current “no sales
   91  solicitation calls” listing or any unlisted telephone number, or
   92  if the calls made concern goods or services that have been
   93  previously ordered or purchased.
   94         (c) It shall be unlawful for any person who makes a
   95  telephonic sales call or causes a telephonic sales call to be
   96  made to fail to transmit or cause not to be transmitted the
   97  originating telephone number and, when made available by the
   98  telephone solicitor’s carrier, the name of the telephone
   99  solicitor to any caller identification service in use by a
  100  recipient of a telephonic sales call. However, it is shall not
  101  be a violation to substitute, for the name and telephone number
  102  used in or billed for making the call, the name of the seller on
  103  behalf of which a telephonic sales call is placed and the
  104  seller’s customer service telephone number, which is answered
  105  during regular business hours. If a telephone number is made
  106  available through a caller identification service as a result of
  107  a telephonic sales call, the solicitor must ensure that
  108  telephone number is capable of receiving telephone calls and
  109  must connect the original call recipient, upon calling such
  110  number, to the telephone solicitor or to the seller on behalf of
  111  which a telephonic sales call was placed. For purposes of this
  112  section, the term “caller identification service” means a
  113  service that allows a telephone subscriber to have the telephone
  114  number and, where available, the name of the calling party
  115  transmitted contemporaneously with the telephone call and
  116  displayed on a device in or connected to the subscriber’s
  117  telephone.
  118         (c)(d) It shall be unlawful for any person who makes a
  119  telephonic sales call or causes a telephonic sales call to be
  120  made to intentionally alter the voice of the caller in an
  121  attempt to disguise or conceal the identity of the caller in
  122  order to defraud, confuse, or financially or otherwise injure
  123  the recipient of a telephonic sales call or in order to obtain
  124  personal information from the recipient of a telephonic sales
  125  call which may be used in a fraudulent or unlawful manner.
  126         (d)There is a rebuttable presumption that a telephonic
  127  sales call made to any area code in this state is made to a
  128  Florida resident or to a person in this state at the time of the
  129  call.
  130         (10)(a) A called party who is aggrieved by a violation of
  131  this section may bring an action to:
  132         1. Enjoin such violation.
  133         2. Recover actual damages or $500, whichever is greater.
  134         (b) If the court finds that the defendant willfully or
  135  knowingly violated this section or rules adopted pursuant to
  136  this section, the court may, in its discretion, increase the
  137  amount of the award to an amount equal to not more than three
  138  times the amount available under paragraph (a).
  139         Section 2. Subsections (6) and (7) of section 501.616,
  140  Florida Statutes, are amended to read:
  141         501.616 Unlawful acts and practices.—
  142         (6) A commercial telephone seller or salesperson may not
  143  make any of the following types of phone calls, including calls
  144  made through automated dialing or recorded messages:
  145         (a) A commercial telephone solicitation phone call before 8
  146  a.m. or after 8 9 p.m. local time in at the called person’s time
  147  zone location.
  148         (b) More than three commercial telephone solicitation phone
  149  calls from any number to a person over a 24-hour period on the
  150  same subject matter or issue, regardless of the phone number
  151  used to make the call.
  152         (7) A commercial telephone seller or salesperson making a
  153  commercial telephone solicitation call may not:
  154         (a) Intentionally act to prevent transmission of the
  155  telephone solicitor’s name or telephone number to the party
  156  called when the equipment or service used by the telephone
  157  solicitor is capable of creating and transmitting the telephone
  158  solicitor’s name or telephone number.
  159         (b) Use technology that deliberately displays a different
  160  caller identification number than the number the call is
  161  originating from to conceal the true identity of the caller. A
  162  commercial telephone seller or salesperson who makes a call
  163  using such technology commits a misdemeanor of the second
  164  degree, punishable as provided in s. 775.082 or s. 775.083.
  165         Section 3. For the purpose of incorporating the amendment
  166  made by this act to section 501.616, Florida Statutes, in a
  167  reference thereto, section 501.604, Florida Statutes, is
  168  reenacted to read:
  169         501.604 Exemptions.—The provisions of this part, except ss.
  170  501.608 and 501.616(6) and (7), do not apply to:
  171         (1) A person engaging in commercial telephone solicitation
  172  where the solicitation is an isolated transaction and not done
  173  in the course of a pattern of repeated transactions of like
  174  nature.
  175         (2) A person soliciting for religious, charitable,
  176  political, or educational purposes. A person soliciting for
  177  other noncommercial purposes is exempt only if that person is
  178  soliciting for a nonprofit corporation and if that corporation
  179  is properly registered as such with the Secretary of State and
  180  is included within the exemption of s. 501(c)(3) or (6) of the
  181  Internal Revenue Code.
  182         (3) A person who does not make the major sales presentation
  183  during the telephone solicitation and who does not intend to,
  184  and does not actually, complete or obtain provisional acceptance
  185  of a sale during the telephone solicitation, but who makes the
  186  major sales presentation and completes the sale at a later face
  187  to-face meeting between the seller and the prospective purchaser
  188  in accordance with the home solicitation provisions in this
  189  chapter. However, if a seller, directly following a telephone
  190  solicitation, causes an individual whose primary purpose it is
  191  to go to the prospective purchaser to collect the payment or
  192  deliver any item purchased, this exemption does not apply.
  193         (4) A licensed securities, commodities, or investment
  194  broker, dealer, or investment adviser, when soliciting within
  195  the scope of his or her license, or a licensed associated person
  196  of a securities, commodities, or investment broker, dealer, or
  197  investment adviser, when soliciting within the scope of his or
  198  her license. As used in this section, “licensed securities,
  199  commodities, or investment broker, dealer, or investment
  200  adviser” means a person subject to license or registration as
  201  such by the Securities and Exchange Commission, by the Financial
  202  Industry Regulatory Authority or other self-regulatory
  203  organization as defined by the Securities Exchange Act of 1934,
  204  15 U.S.C. s. 78l, or by an official or agency of this state or
  205  of any state of the United States. As used in this section,
  206  “licensed associated person of a securities, commodities, or
  207  investment broker, dealer, or investment adviser” means an
  208  associated person registered or licensed by the Financial
  209  Industry Regulatory Authority or other self-regulatory
  210  organization as defined by the Securities Exchange Act of 1934,
  211  15 U.S.C. s. 78l, or by an official or agency of this state or
  212  of any state of the United States.
  213         (5) A person primarily soliciting the sale of a newspaper
  214  of general circulation.
  215         (6) A book, video, or record club or contractual plan or
  216  arrangement:
  217         (a) Under which the seller provides the consumer with a
  218  form which the consumer may use to instruct the seller not to
  219  ship the offered merchandise.
  220         (b) Which is regulated by the Federal Trade Commission
  221  trade regulation concerning “use of negative option plans by
  222  sellers in commerce.”
  223         (c) Which provides for the sale of books, records, or
  224  videos which are not covered under paragraph (a) or paragraph
  225  (b), including continuity plans, subscription arrangements,
  226  standing order arrangements, supplements, and series
  227  arrangements under which the seller periodically ships
  228  merchandise to a consumer who has consented in advance to
  229  receive such merchandise on a periodic basis.
  230         (7) A supervised financial institution or parent,
  231  subsidiary, or affiliate thereof operating within the scope of
  232  supervised activity. As used in this section, “supervised
  233  financial institution” means a commercial bank, trust company,
  234  savings and loan association, mutual savings bank, credit union,
  235  industrial loan company, consumer finance lender, commercial
  236  finance lender, or insurer, provided that the institution is
  237  subject to supervision by an official or agency of this state,
  238  of any state, or of the United States. For the purposes of this
  239  exemption, “affiliate” means a person who directly, or
  240  indirectly through one or more intermediaries, controls or is
  241  controlled by, or is under common control with, a supervised
  242  financial institution.
  243         (8) Any licensed insurance broker, agent, customer
  244  representative, or solicitor when soliciting within the scope of
  245  his or her license. As used in this section, “licensed insurance
  246  broker, agent, customer representative, or solicitor” means any
  247  insurance broker, agent, customer representative, or solicitor
  248  licensed by an official or agency of this state or of any state
  249  of the United States.
  250         (9) A person soliciting the sale of services provided by a
  251  cable television system operating under authority of a franchise
  252  or permit.
  253         (10) A business-to-business sale where:
  254         (a) The commercial telephone seller has been lawfully
  255  operating continuously for at least 3 years under the same
  256  business name and has at least 50 percent of its dollar volume
  257  consisting of repeat sales to existing businesses;
  258         (b) The purchaser business intends to resell or offer for
  259  purposes of advertisement or as a promotional item the property
  260  or goods purchased; or
  261         (c) The purchaser business intends to use the property or
  262  goods purchased in a recycling, reuse, remanufacturing, or
  263  manufacturing process.
  264         (11) A person who solicits sales by periodically publishing
  265  and delivering a catalog of the seller’s merchandise to
  266  prospective purchasers, if the catalog:
  267         (a) Contains a written description or illustration of each
  268  item offered for sale.
  269         (b) Includes the business address or home office address of
  270  the seller.
  271         (c) Includes at least 20 pages of written material and
  272  illustrations and is distributed in more than one state.
  273         (d) Has an annual circulation by mailing of not less than
  274  150,000.
  275         (12) A person who solicits contracts for the maintenance or
  276  repair of goods previously purchased from the person making the
  277  solicitation or on whose behalf the solicitation is made.
  278         (13) A commercial telephone seller licensed pursuant to
  279  chapter 516 or part III of chapter 520. For purposes of this
  280  exemption, the seller must solicit to sell a consumer good or
  281  service within the scope of his or her license and the completed
  282  transaction must be subject to the provisions of chapter 516 or
  283  part III of chapter 520.
  284         (14) A telephone company subject to chapter 364, or
  285  affiliate thereof or its agents, or a telecommunications
  286  business that is regulated by the Florida Public Service
  287  Commission, or a Federal Communications Commission licensed
  288  cellular telephone company or other bona fide radio
  289  telecommunication services provider. For the purposes of this
  290  exemption, “affiliate” means a person who directly, or
  291  indirectly through one or more intermediaries, controls or is
  292  controlled by, or is under common control with, a telephone
  293  company subject to chapter 364.
  294         (15) A person who is licensed pursuant to chapter 497 and
  295  who is soliciting within the scope of the license.
  296         (16) An issuer or a subsidiary of an issuer that has a
  297  class of securities which is subject to s. 12 of the Securities
  298  Exchange Act of 1934, 15 U.S.C. s. 78l, and which is either
  299  registered or exempt from registration under paragraph (A),
  300  paragraph (B), paragraph (C), paragraph (E), paragraph (F),
  301  paragraph (G), or paragraph (H) of subsection (g)(2) of that
  302  section.
  303         (17) A business soliciting exclusively the sale of
  304  telephone answering services provided that the telephone
  305  answering services will be supplied by the solicitor.
  306         (18) A person soliciting a transaction regulated by the
  307  Commodity Futures Trading Commission if the person is registered
  308  or temporarily licensed for this activity with the Commodity
  309  Futures Trading Commission under the Commodity Exchange Act, 7
  310  U.S.C. ss. 1 et seq., and the registration or license has not
  311  expired or been suspended or revoked.
  312         (19) A person soliciting the sale of food or produce as
  313  defined in chapter 500 or chapter 504 if the solicitation
  314  neither intends to result in, or actually results in, a sale
  315  which costs the purchaser in excess of $500.
  316         (20) A person who is registered pursuant to part XI of
  317  chapter 559 and who is soliciting within the scope of the
  318  registration.
  319         (21) A person soliciting business from prospective
  320  consumers who have an existing business relationship with or who
  321  have previously purchased from the business enterprise for which
  322  the solicitor is calling, if the solicitor is operating under
  323  the same exact business name.
  324         (22) A person who has been operating, for at least 1 year,
  325  a retail business establishment under the same name as that used
  326  in connection with telemarketing, and both of the following
  327  occur on a continuing basis:
  328         (a) Either products are displayed and offered for sale or
  329  services are offered for sale and provided at the business
  330  establishment.
  331         (b) A majority of the seller’s business involves the buyer
  332  obtaining such products or services at the seller’s location.
  333         (23) A person who is a registered developer or exchange
  334  company pursuant to chapter 721 and who is soliciting within the
  335  scope of the chapter.
  336         (24) Any person who has been lawfully providing
  337  telemarketing sales services continuously for at least 5 years
  338  under the same ownership and control and who derives 75 percent
  339  of its gross telemarketing sales revenues from contracts with
  340  persons exempted in this section.
  341         (25) A person licensed pursuant to chapter 475 and who is
  342  soliciting within the scope of the chapter.
  343         (26) A publisher, or an agent of a publisher by written
  344  agreement, who solicits the sale of his or her periodical or
  345  magazine of general, paid circulation. The term “paid
  346  circulation” shall not include magazines that are only
  347  circulated as part of a membership package or that are given as
  348  a free gift or prize from the publisher or agent of the
  349  publisher by written agreement.
  350         (27) A person who is a licensed operator or an
  351  identification cardholder as defined in chapter 482, and who is
  352  soliciting within the scope of the chapter.
  353         (28) A licensee, or an affiliate of a licensee, regulated
  354  under chapter 560, the Money Transmitters’ Code, for foreign
  355  currency exchange services.
  356         Section 4. For the purpose of incorporating the amendment
  357  made by this act to section 501.616, Florida Statutes, in a
  358  reference thereto, paragraph (c) of subsection (1) of section
  359  648.44, Florida Statutes, is reenacted to read:
  360         648.44 Prohibitions; penalty.—
  361         (1) A bail bond agent or temporary bail bond agent may not:
  362         (c) Initiate in-person or telephone solicitation after 9:00
  363  p.m. or before 8:00 a.m., in the case of domestic violence
  364  cases, at the residence of the detainee or the detainee’s
  365  family. Any solicitation not prohibited by this chapter must
  366  comply with the telephone solicitation requirements in ss.
  367  501.059(2) and (4), 501.613, and 501.616(6).
  368         Section 5. This act shall take effect July 1, 2021.