Florida Senate - 2021                                    SB 1682
       By Senator Gruters
       23-01533B-21                                          20211682__
    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 an 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; revising
   12         awards of attorney fees and costs for violations to
   13         authorize only a prevailing defendant to receive such
   14         an award; providing an effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Present paragraphs (a) through (e) and (f)
   19  through (i) of subsection (1) of section 501.059, Florida
   20  Statutes, are redesignated as paragraphs (b) through (f) and (i)
   21  through (l), respectively, new paragraphs (a), (g), and (h) are
   22  added to that subsection, and subsections (8), (10), (11), and
   23  (12) are amended, to read:
   24         501.059 Telephone solicitation.—
   25         (1) As used in this section, the term:
   26         (a)“Called party” means a person who is the regular user
   27  of the telephone number who receives a telephonic sales call.
   28         (g)Prior express written consent” means a written
   29  agreement that:
   30         1.Bears the signature of the called party;
   31         2.Clearly authorizes the person making or allowing the
   32  placement of a telephonic sales call by telephone call, text
   33  message, or voicemail transmission to deliver or cause to be
   34  delivered to the called party a telephonic sales call using an
   35  automated system for the selection or dialing of telephone
   36  numbers, the playing of a recorded message when a connection is
   37  completed to a number called, or the transmission of a
   38  prerecorded voicemail;
   39         3.Includes the telephone number to which the signatory
   40  authorizes a telephonic sales call to be delivered; and
   41         4.Includes a clear and conspicuous disclosure informing
   42  the called party that:
   43         a.By executing the agreement, the called party authorizes
   44  the person making or allowing the placement of a telephonic
   45  sales call to deliver or cause to be delivered a telephonic
   46  sales call to the called party using an automated system for the
   47  selection or dialing of telephone numbers or the playing of a
   48  recorded message when a connection is completed to a number
   49  called; and
   50         b.He or she is not required to directly or indirectly sign
   51  the written agreement or to agree to enter into such an
   52  agreement as a condition of purchasing any property, goods, or
   53  services.
   54         (h)“Signature” includes an electronic or digital
   55  signature, to the extent that such form of signature is
   56  recognized as a valid signature under applicable federal law or
   57  state contract law.
   58         (8)(a) A No person may not shall make or knowingly allow a
   59  telephonic sales call to be made if such call involves an
   60  automated system for the selection or dialing of telephone
   61  numbers or the playing of a recorded message when a connection
   62  is completed to a number called without the prior express
   63  written consent of the called party.
   64         (b) Nothing herein prohibits the use of an automated
   65  telephone dialing system with live messages if the calls are
   66  made or messages given solely in response to calls initiated by
   67  the persons to whom the automatic calls or live messages are
   68  directed or if the telephone numbers selected for automatic
   69  dialing have been screened to exclude any telephone subscriber
   70  who is included on the department’s then-current “no sales
   71  solicitation calls” listing or any unlisted telephone number, or
   72  if the calls made concern goods or services that have been
   73  previously ordered or purchased.
   74         (c) It shall be unlawful for any person who makes a
   75  telephonic sales call or causes a telephonic sales call to be
   76  made to fail to transmit or cause not to be transmitted the
   77  originating telephone number and, when made available by the
   78  telephone solicitor’s carrier, the name of the telephone
   79  solicitor to any caller identification service in use by a
   80  recipient of a telephonic sales call. However, it is shall not
   81  be a violation to substitute, for the name and telephone number
   82  used in or billed for making the call, the name of the seller on
   83  behalf of which a telephonic sales call is placed and the
   84  seller’s customer service telephone number, which is answered
   85  during regular business hours. If a telephone number is made
   86  available through a caller identification service as a result of
   87  a telephonic sales call, the solicitor must ensure that
   88  telephone number is capable of receiving telephone calls and
   89  must connect the original call recipient, upon calling such
   90  number, to the telephone solicitor or to the seller on behalf of
   91  which a telephonic sales call was placed. For purposes of this
   92  section, the term “caller identification service” means a
   93  service that allows a telephone subscriber to have the telephone
   94  number and, where available, the name of the calling party
   95  transmitted contemporaneously with the telephone call and
   96  displayed on a device in or connected to the subscriber’s
   97  telephone.
   98         (c)(d) It shall be unlawful for any person who makes a
   99  telephonic sales call or causes a telephonic sales call to be
  100  made to intentionally alter the voice of the caller in an
  101  attempt to disguise or conceal the identity of the caller in
  102  order to defraud, confuse, or financially or otherwise injure
  103  the recipient of a telephonic sales call or in order to obtain
  104  personal information from the recipient of a telephonic sales
  105  call which may be used in a fraudulent or unlawful manner.
  106         (d)There is a rebuttable presumption that a telephonic
  107  sales call made to an area code in this state is made to a
  108  Florida resident or to a person in this state at the time of the
  109  call.
  110         (10)(a) A called party who is aggrieved by a violation of
  111  this section may bring an action to:
  112         1.Enjoin such violation.
  113         2.Recover actual damages or $500, whichever is greater.
  114         (b)If the court finds that the defendant willfully or
  115  knowingly violated this section or rules adopted pursuant to
  116  this section, the court may, in its discretion, increase the
  117  amount of the award to an amount equal to not more than three
  118  times the amount available under paragraph (a).
  119         (11)(a)If a plaintiff prevails in any civil litigation
  120  resulting from a transaction involving a violation of this
  121  section, the prevailing party, after judgment in the trial court
  122  and exhaustion of all appeals, if any, the plaintiff shall
  123  receive his or her reasonable attorney attorney’s fees and costs
  124  from the defendant nonprevailing party.
  125         (b) The attorney for the prevailing plaintiff party shall
  126  submit a sworn affidavit of his or her time spent on the case
  127  and his or her costs incurred for all the motions, hearings, and
  128  appeals to the trial judge who presided over the civil case.
  129         (c) The trial judge shall award the prevailing plaintiff
  130  party the sum of reasonable costs incurred in the action plus a
  131  reasonable legal fee for the hours actually spent on the case as
  132  sworn to in an affidavit.
  133         (d) Any award of attorney attorney’s fees or costs shall
  134  become a part of the judgment and subject to execution as the
  135  law allows.
  136         (e) In any civil litigation initiated by the department or
  137  the Department of Legal Affairs, the court may award to the
  138  prevailing party reasonable attorney attorney’s fees and costs
  139  if the court finds that there was a complete absence of a
  140  justiciable issue of either law or fact raised by the losing
  141  party or if the court finds bad faith on the part of the losing
  142  party.
  143         (12)(11) Telecommunications companies shall inform their
  144  customers of the provisions of this section. The notification
  145  may be made by:
  146         (a) Annual inserts in the billing statements mailed to
  147  customers; and
  148         (b) Conspicuous publication of the notice in the consumer
  149  information pages of the local telephone directories.
  150         (13)(12) The department may adopt rules to implement this
  151  section.
  152         Section 2. This act shall take effect July 1, 2021.