Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 1120
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Regulated Industries (Gruters) recommended the
    1         Senate Amendment (with title amendment)
    3         Before line 24
    4  insert:
    5         Section 1. Present paragraphs (a) through (e) and (f)
    6  through (i) of subsection (1) of section 501.059, Florida
    7  Statutes, are redesignated as paragraphs (b) through (f) and (i)
    8  through (l), respectively, new paragraphs (a), (g), and (h) are
    9  added to that subsection, and subsections (8) and (10) and
   10  present subsections (11) and (12) are amended, to read:
   11         501.059 Telephone solicitation.—
   12         (1) As used in this section, the term:
   13         (a)“Called party” means a person who is the regular user
   14  of the telephone number that receives a telephonic sales call.
   15         (g)Prior express written consent” means a written
   16  agreement that:
   17         1.Bears the signature of the called party;
   18         2.Clearly authorizes the person making or allowing the
   19  placement of a telephonic sales call by telephone call, text
   20  message, or voicemail transmission to deliver or cause to be
   21  delivered to the called party a telephonic sales call using an
   22  automated system for the selection or dialing of telephone
   23  numbers, the playing of a recorded message when a connection is
   24  completed to a number called, or the transmission of a
   25  prerecorded voicemail;
   26         3.Includes the telephone number to which the signatory
   27  authorizes a telephonic sales call to be delivered; and
   28         4.Includes a clear and conspicuous disclosure informing
   29  the called party that:
   30         a.By executing the agreement, the called party authorizes
   31  the person making or allowing the placement of a telephonic
   32  sales call to deliver or cause to be delivered a telephonic
   33  sales call to the called party using an automated system for the
   34  selection or dialing of telephone numbers or the playing of a
   35  recorded message when a connection is completed to a number
   36  called; and
   37         b.He or she is not required to directly or indirectly sign
   38  the written agreement or to agree to enter into such an
   39  agreement as a condition of purchasing any property, goods, or
   40  services.
   41         (h)“Signature” includes an electronic or digital
   42  signature, to the extent that such form of signature is
   43  recognized as a valid signature under applicable federal law or
   44  state contract law.
   45         (8)(a) A No person may not shall make or knowingly allow a
   46  telephonic sales call to be made if such call involves an
   47  automated system for the selection or dialing of telephone
   48  numbers or the playing of a recorded message when a connection
   49  is completed to a number called without the prior express
   50  written consent of the called party.
   51         (b) Nothing herein prohibits the use of an automated
   52  telephone dialing system with live messages if the calls are
   53  made or messages given solely in response to calls initiated by
   54  the persons to whom the automatic calls or live messages are
   55  directed or if the telephone numbers selected for automatic
   56  dialing have been screened to exclude any telephone subscriber
   57  who is included on the department’s then-current “no sales
   58  solicitation calls” listing or any unlisted telephone number, or
   59  if the calls made concern goods or services that have been
   60  previously ordered or purchased.
   61         (c) It shall be unlawful for any person who makes a
   62  telephonic sales call or causes a telephonic sales call to be
   63  made to fail to transmit or cause not to be transmitted the
   64  originating telephone number and, when made available by the
   65  telephone solicitor’s carrier, the name of the telephone
   66  solicitor to any caller identification service in use by a
   67  recipient of a telephonic sales call. However, it is shall not
   68  be a violation to substitute, for the name and telephone number
   69  used in or billed for making the call, the name of the seller on
   70  behalf of which a telephonic sales call is placed and the
   71  seller’s customer service telephone number, which is answered
   72  during regular business hours. If a telephone number is made
   73  available through a caller identification service as a result of
   74  a telephonic sales call, the solicitor must ensure that
   75  telephone number is capable of receiving telephone calls and
   76  must connect the original call recipient, upon calling such
   77  number, to the telephone solicitor or to the seller on behalf of
   78  which a telephonic sales call was placed. For purposes of this
   79  section, the term “caller identification service” means a
   80  service that allows a telephone subscriber to have the telephone
   81  number and, where available, the name of the calling party
   82  transmitted contemporaneously with the telephone call and
   83  displayed on a device in or connected to the subscriber’s
   84  telephone.
   85         (c)(d) It shall be unlawful for any person who makes a
   86  telephonic sales call or causes a telephonic sales call to be
   87  made to intentionally alter the voice of the caller in an
   88  attempt to disguise or conceal the identity of the caller in
   89  order to defraud, confuse, or financially or otherwise injure
   90  the recipient of a telephonic sales call or in order to obtain
   91  personal information from the recipient of a telephonic sales
   92  call which may be used in a fraudulent or unlawful manner.
   93         (d)There is a rebuttable presumption that a telephonic
   94  sales call made to any area code in this state is made to a
   95  Florida resident or to a person in this state at the time of the
   96  call.
   97         (10)(a) A called party who is aggrieved by a violation of
   98  this section may bring an action to:
   99         1.Enjoin such violation.
  100         2.Recover actual damages or $500, whichever is greater.
  101         (b)If the court finds that the defendant willfully or
  102  knowingly violated this section or rules adopted pursuant to
  103  this section, the court may, in its discretion, increase the
  104  amount of the award to an amount equal to not more than three
  105  times the amount available under paragraph (a).
  106         (11)(a)If a plaintiff prevails in any civil litigation
  107  resulting from a transaction involving a violation of this
  108  section, the prevailing party, after judgment in the trial court
  109  and exhaustion of all appeals, if any, the plaintiff shall
  110  receive his or her reasonable attorney attorney’s fees and costs
  111  from the defendant nonprevailing party.
  112         (b) The attorney for the prevailing plaintiff party shall
  113  submit a sworn affidavit of his or her time spent on the case
  114  and his or her costs incurred for all the motions, hearings, and
  115  appeals to the trial judge who presided over the civil case.
  116         (c) The trial judge shall award the prevailing plaintiff
  117  party the sum of reasonable costs incurred in the action plus a
  118  reasonable legal fee for the hours actually spent on the case as
  119  sworn to in an affidavit.
  120         (d) Any award of attorney attorney’s fees or costs shall
  121  become a part of the judgment and subject to execution as the
  122  law allows.
  123         (e) In any civil litigation initiated by the department or
  124  the Department of Legal Affairs, the court may award to the
  125  prevailing party reasonable attorney attorney’s fees and costs
  126  if the court finds that there was a complete absence of a
  127  justiciable issue of either law or fact raised by the losing
  128  party or if the court finds bad faith on the part of the losing
  129  party.
  130         (12)(11) Telecommunications companies shall inform their
  131  customers of the provisions of this section. The notification
  132  may be made by:
  133         (a) Annual inserts in the billing statements mailed to
  134  customers; and
  135         (b) Conspicuous publication of the notice in the consumer
  136  information pages of the local telephone directories.
  137         (13)(12) The department may adopt rules to implement this
  138  section.
  140  ================= T I T L E  A M E N D M E N T ================
  141  And the title is amended as follows:
  142         Delete line 2
  143  and insert:
  144         An act relating to telephone solicitation; amending s.
  145         501.059, F.S.; defining terms; prohibiting certain
  146         telephonic sales calls without the prior express
  147         written consent of the called party; removing
  148         provisions authorizing the use of certain automated
  149         telephone dialing systems; providing a rebuttable
  150         presumption for certain calls made to any area code in
  151         this state; providing a cause of action for aggrieved
  152         called parties; authorizing a court to increase an
  153         award for willful and knowing violations; revising
  154         awards of attorney fees and costs for violations to
  155         authorize only a prevailing plaintiff to receive such
  156         an award;