HB 777

1	A bill to be entitled
2	An act relating to telephone solicitation; amending s.
3	501.059, F.S.; defining the terms "cellular telephone,"
4	"electronic serial number," and "mobile identification
5	number"; prohibiting a telephone solicitor from making a
6	telephonic sales call to any telephone number assigned to
7	a cellular telephone service without the prior consent of
8	the subscriber to the cellular telephone service; amending
9	ss. 501.603 and 648.44, F.S., conforming cross-references;
10	providing an effective date.
11
12	Be It Enacted by the Legislature of the State of Florida:
13
14	Section 1.  Section 501.059, Florida Statutes, is amended
15	to read:
16	501.059  Telephone solicitation.--
17	(1)  As used in this section:
18	(a)  "Telephonic sales call" means a call made by a
19	telephone solicitor to a consumer, for the purpose of soliciting
20	a sale of any consumer goods or services, or for the purpose of
21	soliciting an extension of credit for consumer goods or
22	services, or for the purpose of obtaining information that will
23	or may be used for the direct solicitation of a sale of consumer
24	goods or services or an extension of credit for such purposes.
25	(b)  "Consumer goods or services" means any real property
26	or any tangible or intangible personal property which is
27	normally used for personal, family, or household purposes,
28	including, without limitation, any such property intended to be
29	attached to or installed in any real property without regard to
30	whether it is so attached or installed, as well as cemetery lots
31	and timeshare estates, and any services related to such
32	property.
33	(c)  "Unsolicited telephonic sales call" means a telephonic
34	sales call other than a call made:
35	1.  In response to an express request of the person called;
36	2.  Primarily in connection with an existing debt or
37	contract, payment or performance of which has not been completed
38	at the time of such call;
39	3.  To any person with whom the telephone solicitor has a
40	prior or existing business relationship; or
41	4.  By a newspaper publisher or his or her agent or
42	employee in connection with his or her business.
43	(d)  "Commission" means the Florida Public Service
44	Commission.
45	(e)  "Telephone solicitor" means any natural person, firm,
46	organization, partnership, association, or corporation, or a
47	subsidiary or affiliate thereof, doing business in this state,
48	who makes or causes to be made a telephonic sales call,
49	including, but not limited to, calls made by use of automated
50	dialing or recorded message devices.
51	(f)  "Consumer" means an actual or prospective purchaser,
52	lessee, or recipient of consumer goods or services.
53	(g)  "Merchant" means a person who, directly or indirectly,
54	offers or makes available to consumers any consumer goods or
55	services.
56	(h)  "Doing business in this state" refers to businesses
57	who conduct telephonic sales calls from a location in Florida or
58	from other states or nations to consumers located in Florida.
59	(i)  "Department" means the Department of Agriculture and
60	Consumer Services.
61	(j)  "Electronic serial number" means the unique numerical
62	algorithm that is programmed into the microchip of each cellular
63	telephone by the manufacturer and is vital to the successful
64	operation and billing of the telephone.
65	(k)  "Mobile identification number" means the cellular
66	telephone number assigned to the cellular telephone by the
67	cellular telephone carrier.
68	(l)  "Cellular telephone" means a communication device
69	containing a unique electronic serial number that is programmed
70	into its computer chip by its manufacturer and whose operation
71	is dependent on the transmission of that electronic serial
72	number, along with a mobile identification number that is
73	assigned by the cellular telephone carrier, in the form of radio
74	signals through cell sites and mobile switching stations.
75	(2)  Any telephone solicitor who makes an unsolicited
76	telephonic sales call to a residential, mobile, or telephonic
77	paging device telephone number shall identify himself or herself
78	by his or her true first and last names and the business on
79	whose behalf he or she is soliciting immediately upon making
80	contact by telephone with the person who is the object of the
81	telephone solicitation.
82	(3)  A telephone solicitor may not make any telephonic
83	sales call, other than a call made with the prior written
84	express consent of the called party, to any telephone number
85	assigned to a cellular telephone service or any service for
86	which the called party is charged for the call.
87	(4)(3)(a)  Any residential, mobile, or telephonic paging
88	device telephone subscriber desiring to be placed on a "no sales
89	solicitation calls" listing indicating that the subscriber does
90	not wish to receive unsolicited telephonic sales calls may
91	notify the department and be placed on that listing upon receipt
92	by the department of a $10 initial listing charge. This listing
93	shall be renewed by the department annually for each consumer
94	upon receipt of a renewal notice and a $5 assessment.
95	(b)  The department shall update its "no sales solicitation
96	calls" listing upon receipt of initial consumer subscriptions or
97	renewals and provide this listing for a fee to telephone
98	solicitors upon request.
99	(c)  All fees imposed under pursuant to this section shall
100	be deposited in the General Inspection Trust Fund for the
101	administration of this section.
102	(5)(4)  A No telephone solicitor may not shall make or
103	cause to be made any unsolicited telephonic sales call to any
104	residential, mobile, or telephonic paging device telephone
105	number if the number for that telephone appears in the then-
106	current quarterly listing published by the department. Any
107	telephone solicitor or person who offers for sale any consumer
108	information which includes residential, mobile, or telephonic
109	paging device telephone numbers, except directory assistance and
110	telephone directories sold by telephone companies and
111	organizations exempt under s. 501(c)(3) or (6) of the Internal
112	Revenue Code, shall screen and exclude those numbers which
113	appear on the division's then-current "no sales solicitation
114	calls" list. This subsection does not apply to any person
115	licensed pursuant to chapter 475 who calls an actual or
116	prospective seller or lessor of real property when such call is
117	made in response to a yard sign or other form of advertisement
118	placed by the seller or lessor.
119	(6)(5)(a)  A contract made pursuant to a telephonic sales
120	call is not valid and enforceable against a consumer unless made
121	in compliance with this subsection.
122	(b)  A contract made pursuant to a telephonic sales call:
123	1.  Shall be reduced to writing and signed by the consumer.
124	2.  Shall comply with all other applicable laws and rules.
125	3.  Shall match the description of goods or services as
126	principally used in the telephone solicitations.
127	4.  Shall contain the name, address, and telephone number
128	of the seller, the total price of the contract, and a detailed
129	description of the goods or services being sold.
130	5.  Shall contain, in bold, conspicuous type, immediately
131	preceding the signature, the following statement:
132	"You are not obligated to pay any money unless you sign
133	this contract and return it to the seller."
134	6.  May not exclude from its terms any oral or written
135	representations made by the telephone solicitor to the consumer
136	in connection with the transaction.
137	(c)  The provisions of This subsection does do not apply to
138	contractual sales regulated under other sections of the Florida
139	Statutes, or to the sale of financial services, security sales,
140	or sales transacted by companies or their wholly owned
141	subsidiaries or agents, which companies are regulated by chapter
142	364, or to the sale of cable television services to the duly
143	franchised cable television operator's existing subscribers
144	within that cable television operator's franchise area, or to
145	any sales where no prior payment is made to the merchant and an
146	invoice accompanies the goods or services allowing the consumer
147	7 days to cancel or return without obligation for any payment.
148	(7)(6)(a)  A merchant who engages a telephone solicitor to
149	make or cause to be made a telephonic sales call may shall not
150	make or submit any charge to the consumer's credit card account
151	or make or cause to be made any electronic transfer of funds
152	until after the merchant receives from the consumer a copy of
153	the contract, signed by the purchaser, which complies with this
154	section.
155	(b)  A merchant who conducts a credit card account
156	transaction under pursuant to this section shall be subject to
157	the provisions of s. 817.62.
158	(c)  The provisions of This subsection does do not apply to
159	a transaction:
160	1.  Made in accordance with prior negotiations in the
161	course of a visit by the consumer to a merchant operating a
162	retail business establishment which has a fixed permanent
163	location and where consumer goods are displayed or offered for
164	sale on a continuing basis;
165	2.  In which the consumer may obtain a full refund for the
166	return of undamaged and unused goods or a cancellation of
167	services notice to the seller within 7 days after receipt by the
168	consumer, and the seller will process the refund within 30 days
169	after receipt of the returned merchandise by the consumer;
170	3.  In which the consumer purchases goods or services
171	pursuant to an examination of a television, radio, or print
172	advertisement or a sample, brochure, or catalog of the merchant
173	that contains:
174	a.  The name, address, and telephone number of the
175	merchant;
176	b.  A description of the goods or services being sold; and
177	c.  Any limitations or restrictions that apply to the
178	offer; or
179	4.  In which the merchant is a bona fide charitable
180	organization or a newspaper as defined in chapter 50.
181	(8)(7)(a)  A No person may not shall make or knowingly
182	allow a telephonic sales call to be made if the such call
183	involves an automated system for the selection or dialing of
184	telephone numbers or the playing of a recorded message when a
185	connection is completed to a number called.
186	(b)  This subsection does not prohibit Nothing herein
187	prohibits the use of an automated telephone dialing system with
188	live messages if the calls are made or messages given solely in
189	response to calls initiated by the persons to whom the automatic
190	calls or live messages are directed or if the telephone numbers
191	selected for automatic dialing have been screened to exclude any
192	telephone subscriber who is included on the department's then-
193	current "no sales solicitation calls" listing or any unlisted
194	telephone number, or if the calls made concern goods or services
195	that have been previously ordered or purchased.
196	(9)(8)  The department shall investigate any complaints
197	received concerning violations of this section. If, after
198	investigating any complaint, the department finds that there has
199	been a violation of this section, the department or the
200	Department of Legal Affairs may bring an action to impose a
201	civil penalty and to seek other relief, including injunctive
202	relief, as the court deems appropriate against the telephone
203	solicitor. The civil penalty may shall not exceed $10,000 per
204	violation and shall be deposited in the General Inspection Trust
205	Fund if the action or proceeding was brought by the department,
206	or the Legal Affairs Revolving Trust Fund if the action or
207	proceeding was brought by the Department of Legal Affairs. This
208	civil penalty may be recovered in any action brought under this
209	part by the department, or the department may terminate any
210	investigation or action upon agreement by the person to pay a
211	stipulated civil penalty. The department or the court may waive
212	any civil penalty if the person has previously made full
213	restitution or reimbursement or has paid actual damages to the
214	consumers who have been injured by the violation.
215	(10)(9)(a)  In any civil litigation resulting from a
216	transaction involving a violation of this section, the
217	prevailing party, after judgment in the trial court and
218	exhaustion of all appeals, if any, shall receive his or her
219	reasonable attorney's fees and costs from the nonprevailing
220	party.
221	(b)  The attorney for the prevailing party shall submit a
222	sworn affidavit of his or her time spent on the case and his or
223	her costs incurred for all the motions, hearings, and appeals to
224	the trial judge who presided over the civil case.
225	(c)  The trial judge shall award the prevailing party the
226	sum of reasonable costs incurred in the action plus a reasonable
227	legal fee for the hours actually spent on the case as sworn to
228	in an affidavit.
229	(d)  Any award of attorney's fees or costs shall become a
230	part of the judgment and subject to execution as the law allows.
231	(e)  In any civil litigation initiated by the department or
232	the Department of Legal Affairs, the court may award to the
233	prevailing party reasonable attorney's fees and costs if the
234	court finds that there was a complete absence of a justiciable
235	issue of either law or fact raised by the losing party or if the
236	court finds bad faith on the part of the losing party.
237	(11)(10)  The commission shall by rule ensure that
238	telecommunications companies inform their customers of the
239	provisions of this section. The notification may be made by:
240	(a)  Annual inserts in the billing statements mailed to
241	customers; and
242	(b)  Conspicuous publication of the notice in the consumer
243	information pages of the local telephone directories.
244	Section 2.  Subsection (1) of section 501.603, Florida
245	Statutes, is amended to read:
246	501.603  Definitions.--As used in this part, unless the
247	context otherwise requires, the term:
248	(1)  "Commercial telephone solicitation" means:
249	(a)  An unsolicited telephone call to a person initiated by
250	a commercial telephone seller or salesperson, or an automated
251	dialing machine used in accordance with the provisions of s.
252	501.059(8) s. 501.059(7) for the purpose of inducing the person
253	to purchase or invest in consumer goods or services;
254	(b)  Other communication with a person where:
255	1.  A gift, award, or prize is offered; or
256	2.  A telephone call response is invited; and
257	3.  The salesperson intends to complete a sale or enter
258	into an agreement to purchase during the course of the telephone
259	call; or
260	(c)  Other communication with a person which represents a
261	price, quality, or availability of consumer goods or services
262	and which invites a response by telephone or which is followed
263	by a call to the person by a salesperson.
264
265	For purposes of this section, "other communication" means a
266	written or oral notification or advertisement transmitted
267	through any means. Also, for purposes of this section, "invites
268	a response by telephone" does not mean the mere listing or
269	including of a telephone number in a notification or
270	advertisement.
271	Section 3.  Paragraph (c) of subsection (1) of section
272	648.44, Florida Statutes, is amended to read:
273	648.44  Prohibitions; penalty.--
274	(1)  A bail bond agent or temporary bail bond agent may
275	not:
276	(c)  Initiate in-person or telephone solicitation after
277	9:00 p.m. or before 8:00 a.m., in the case of domestic violence
278	cases, at the residence of the detainee or the detainee's
279	family. Any solicitation not prohibited by this chapter must
280	comply with the telephone solicitation requirements in ss.
281	501.059(2) and (5) (4), 501.613, and 501.616(6).
282	Section 4.  This act shall take effect July 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.