Florida Senate - 2022               CS for CS for CS for SB 1564
       
       
        
       By the Committees on Rules; Regulated Industries; and Commerce
       and Tourism; and Senator Hutson
       
       
       
       
       595-03064-22                                          20221564c3
    1                        A bill to be entitled                      
    2         An act relating to telephone solicitation; amending s.
    3         501.059, F.S.; redefining terms; conforming a
    4         provision to changes made by the act; prohibiting the
    5         use of automated telephone dialing systems using
    6         certain types of messages under certain circumstances;
    7         authorizing such use in response to certain inquiries;
    8         providing a limitation; revising provisions for the
    9         award of attorney fees and costs; providing for
   10         retroactive application; providing an effective date.
   11          
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Paragraphs (g), (h), and (k) of subsection (1),
   15  paragraph (a) of subsection (8), and subsection (11) of section
   16  501.059, Florida Statutes, are amended, and paragraph (e) is
   17  added to subsection (8) of that section, to read:
   18         501.059 Telephone solicitation.—
   19         (1) As used in this section, the term:
   20         (g) “Prior express written consent” means a written
   21  agreement that:
   22         1. Bears the signature of the called party;
   23         2. Clearly authorizes the person making or allowing the
   24  placement of a telephonic sales call by telephone call, text
   25  message, or voicemail transmission to deliver or cause to be
   26  delivered to the called party a telephonic sales call using an
   27  automated system for the selection and or dialing of telephone
   28  numbers, the playing of a recorded message when a connection is
   29  completed to a number called, the transmission of a text
   30  message, or the transmission of a prerecorded voicemail;
   31         3. Includes the telephone number to which the signatory
   32  authorizes a telephonic sales call to be delivered; and
   33         4. Includes a clear and conspicuous disclosure informing
   34  the called party that:
   35         a. By executing the agreement, the called party authorizes
   36  the person making or allowing the placement of a telephonic
   37  sales call to deliver or cause to be delivered a telephonic
   38  sales call to the called party using an automated system for the
   39  selection and or dialing of telephone numbers, or the playing of
   40  a recorded message when a connection is completed to a number
   41  called, the transmission of a text message, or the transmission
   42  of a prerecorded voicemail; and
   43         b. He or she is not required to directly or indirectly sign
   44  the written agreement or to agree to enter into such an
   45  agreement as a condition of purchasing any property, goods, or
   46  services.
   47         (h) “Signature” includes an electronic or digital
   48  signature, including when such signature is made on agreements
   49  obtained by a compliant e-mail, website form, text message,
   50  telephone keypress, or voice recording, to the extent that such
   51  form of signature is recognized as a valid signature under
   52  applicable federal law or state contract law.
   53         (k) “Unsolicited telephonic sales call” means a telephonic
   54  sales call other than a call made:
   55         1. Within 120 days after In response to an express request
   56  of the person called party;
   57         2. Primarily in connection with an existing debt or
   58  contract, if payment or performance of such debt or contract has
   59  not been completed at the time of such call;
   60         3. To a person with whom the telephone solicitor has a
   61  prior or existing business relationship; or
   62         4. By a newspaper publisher or his or her agent or employee
   63  in connection with his or her business; or
   64         5.For the purpose of polling or soliciting the expression
   65  of ideas, opinions, or votes, including when such polling or
   66  soliciting is made by text message.
   67         (8)(a) A person may not make or knowingly allow a
   68  telephonic sales call to be made if such call involves an
   69  automated system for the selection and or dialing of telephone
   70  numbers, or the playing of a recorded message when a connection
   71  is completed to a number called, the transmission of a text
   72  message, or the transmission of a prerecorded voicemail without
   73  the prior express written consent of the called party.
   74         (e)This subsection does not prohibit the use of an
   75  automated system for the selection and dialing of telephone
   76  numbers with live messages or text messages if the call or
   77  message is made solely in response to an inquiry initiated by
   78  the called party. However, only three such calls or messages may
   79  be made in response to each inquiry.
   80         (11)(a) In any civil litigation resulting from a
   81  transaction involving a violation of this section, the
   82  prevailing party, after judgment in the trial court and
   83  exhaustion of all appeals, if any, shall receive his or her
   84  reasonable attorney attorney’s fees and costs from the
   85  nonprevailing party.
   86         (b) The attorney for the prevailing party shall submit a
   87  sworn affidavit of his or her time spent on the case and his or
   88  her costs incurred for all the motions, hearings, and appeals to
   89  the trial judge who presided over the civil case.
   90         (c) The trial judge shall award the prevailing party the
   91  sum of reasonable costs incurred in the action plus a reasonable
   92  legal fee for the hours actually spent on the case as sworn to
   93  in an affidavit.
   94         (d) Any award of attorney attorney’s fees or costs shall
   95  become a part of the judgment and subject to execution as the
   96  law allows.
   97         (e) In any civil litigation initiated by the department or
   98  the Department of Legal Affairs, the court may award to the
   99  prevailing party reasonable attorney attorney’s fees and costs
  100  if the court finds that there was a complete absence of a
  101  justiciable issue of either law or fact raised by the losing
  102  party or if the court finds bad faith on the part of the losing
  103  party.
  104         Section 2. The amendments made by this act to s. 501.059,
  105  Florida Statutes, are remedial in nature and apply retroactively
  106  to July 1, 2021, and to any proceeding pending or commenced on
  107  or after July 1, 2021.
  108         Section 3. This act shall take effect July 1, 2022.