HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 761 Telephone Solicitation
SPONSOR(S): Commerce Committee, Civil Justice Subcommittee, Fabricio
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development 12 Y, 0 N Thompson Anstead
Subcommittee
2) Civil Justice Subcommittee 12 Y, 3 N, As CS Mathews Jones
3) Commerce Committee 16 Y, 1 N, As CS Thompson Hamon
SUMMARY ANALYSIS
Chapter 501, part IV, of the Florida Telemarketing Act (FTA), regulates telemarketers and requires non-exempt
businesses engaged in telemarketing and their salespeople to be licensed by the Florida Department of
Agriculture and Consumer Services (DACS) before operating in Florida. Florida law also prohibits telephonic
sales calls that use an automated system for the selection or dialing of telephone numbers or the playing of
recorded messages (robocall) without the prior express written consent of the called party, with some
exceptions. Unsolicited telephonic sales calls and text messages from telemarketers are prohibited. Residents
who do not wish to receive such calls may have their residential, mobile, or paging device telephone number
included on Florida’s Do Not Call List.
The bill:
 Revises the prohibition on telephonic sales calls that use an automated system to specifically include
unsolicited calls using automated systems for the selection and dialing of telephone numbers or playing
of a recorded message.
 Clarifies what constitutes consent and clear and conspicuous disclosure.
 Revises what constitutes a consumer’s “signature” for purposes of giving prior express written consent
to include either an electronic or digital signature or an “act demonstrating consent,” which may include
a simple affirmative response.
 Provides a safe harbor period of 15 days from the date a consumer notifies the telephone solicitor that
he or she does not want to receive text message solicitations.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of upon becoming a law.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Florida Telemarketing Act
Chapter 501, part IV, the Florida Telemarketing Act (FTA), requires non-exempt businesses engaged in
telemarketing and their salespeople to be licensed by the Florida Department of Agriculture and
Consumer Services (DACS) before operating in Florida. Certain exempt entities must have a valid
affidavit of exemption on file prior to operating in Florida. There are approximately 28 exemptions,
including: soliciting for religious, charitable, political or educational purposes; research companies;
newspapers; book and video clubs; cable television; and persons or companies with whom the
consumer has a prior business relationship.1
The FTA generally requires businesses that solicit the sale of consumer goods or services to:
 Be licensed;2
 Post a form of security;3
 License all of their salespeople;4 and
 Provide DACS with a list of all telephone numbers used to make sales calls. 5
An application for licensure as a telemarketer must include several pieces of information, including the
applicant’s identifying information, prior experience in the field, criminal and administrative history
(especially relating to fraud, theft, or unfair and deceptive trade practices), phone numbers from which
the telemarketer will make sales calls, and any parent or affiliate entities under which it will transact
business, if applicable.6
Additionally, an applicant for licensure as a telemarketer must submit:
 A script that will be used by its salespersons during calls, or other related literature;
 The identity, address, date of birth, and alias of each of the applicant’s principal officers,
directors, trustees, shareholders, owners, partners, office managers, and salespersons who are
employed by or affiliated with the applicant; and
 A $1,500 licensing fee.7
In Florida, it is unlawful for telemarketers to:8
 Make calls before 8 a.m. or after 8 p.m. local time at the called person’s time zone.
 Fail to provide the call recipient with their name and telephone number.
 Accept novelty payments.9
 Employ or be affiliated with an unlicensed salesperson.
 Be employed by or affiliated with an unlicensed commercial telephone seller.
 Operate without a license.
1 S. 501.604, F.S.
2 S. 501.605, F.S.
3 S. 501.611, F.S., requires a $50,000 bond, irrevocable letter of credit issued for the applicant, or a certificate of deposit in favor of
the Department for payment on findings of fraud, misrepresentation, breach of contract, or other v iolation by the applicant.
4 S. 501.607, F.S.
5 S. 501.605, F.S.
6 S. 501.605(2), F.S.
7 S. 501.605(5)(b), F.S.
8 S. 501.616, F.S.
9 S. 501.603(8), F.S., defines a “novelty payment” as a payment method that does not have systematic monitoring and includes
remotely created checks, remotely created payment orders, cash -to-cash money transfers (such as Western Union) and cash reload
mechanisms (such as MoneyPak or ReloadIt). Novelty payment methods are not systematically monitored, have little to no consumer
protection in the case of fraud or theft, and are used frequently in scams and other fraudulent activity.
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 Florida Telemarketing Act - Violations
Violations of the FTA are punishable by a civil fine of up to $10,000 per violation,10 the imposition of
criminal penalties, including conviction of a felony offense.11 DACS and the office of the state attorney
have investigative authority, including the power to subpoena witnesses if a violation oc curs.12
Reasonable attorney fees and costs may be awarded to the prevailing party in a civil action as part of a
judgment or administrative order.13
Do Not Call
Section 501.059, F.S., governs telephone solicitations. The law includes the Florida Do Not Call Act,
also known as the "Do Not Call” list (DNC list), which prohibits unsolicited telephonic sales calls and
text messages from telemarketers.14 Residents who do not wish to receive unsolicited telephonic sales
calls may have their residential, mobile, or paging device telephone number included on the DNC list.
DACS maintains the DNC list, it is free to register, and a registered number remains on the DNC list
indefinitely.15
An “unsolicited telephonic sales call” does not include calls made:
 In response to an express request of the person called;
 Primarily in connection with an existing debt or contract, if payment or performance of such debt
or contract has not been completed at the time of such call;
 To a person with whom the telephone solicitor has a prior or existing business relationship; or
 By a newspaper publisher or his or her agent or employee in connection with his or her
business.16
Telephone solicitors 17 are prohibited from making telephonic sales calls 18 to consumers who register for
the DNC list. A “telephonic sales call” means a telephone call, text message, or voicemail transmission
to a consumer for the purpose of soliciting a sale of consumer goods or services, soliciting an extension
of credit for consumer goods or services, or obtaining information that will or may be used for the direct
solicitation of a sale of consumer goods or services or an extension of credit for such purposes. 19
In addition to those consumers who are registered for the DNC list, a telephone solicitor may not call or
text a consumer who previously communicated to the telephone solicitor that he or she does not wish
to be contacted. Businesses and non-profit organizations are required to maintain a list of consumers
who have made a do-not-call registration request. It is a violation of the Florida Do Not Call Act to call a
consumer who has requested placement on the company's do-not-call list.20
When a telephone number is made available through a caller ID service during a telephonic sales call,
the solicitor must ensure that the number is capable of receiving phone calls, and that the dialing of the
10 S. 501.619, F.S.
11 S. 501.623, F.S.
12 S. 501.617, F.S.
13 S. 501.621, F.S.
14 See s. 501.059, F.S.
15 Dept. of Ag. and Consumer Services, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last
visited Mar. 21, 2023).
16 S. 501.059(1)(k), F.S.
17 S. 501.059(1)(i), F.S., defines “telephone solicitor” as “a natural person, firm, organization, partnership, association, or corporation,
or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call, including, but
not limited to, calls made by use of automated dialing or recorded message devices.”
18 S. 501.059(1)(j), F.S., defines “telephonic sales call” as a telephone call, text message, or voicemail transmission to a con sumer for
the purpose of soliciting a sale of any consumer goods or services, soliciting an extension of credit for consumer goods or services, or
obtaining information that will or may be used for the direct solicitation of a sale of consumer goods or services or an exte nsion of
credit for such purposes.
19 S. 501.059(1)(j), F.S.
20 S. 501.059(5), F.S.
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 number will connect the call recipient with the telephone solicitor or the seller on behalf of which the
phone call was placed.21
Anyone who receives an unsolicited sales call can report the call to DACS using the online Do Not Call
Complaint Form.22
Do Not Call - Consent
The law governing telephone solicitations also prohibits automated telephonic sales calls without the
prior express written consent of the called party. Specifically, the law provides that:
A person may not make or knowingly allow a telephonic sales call to be made if
such call involves an automated system for the selection or dialing of telephone
numbers or the playing of a recorded message when a connection is completed
to a number called without the prior express written consent of the called party. 23
"Prior express written consent" is defined as a written agreement that:
 Bears the signature of the called party;
 Clearly authorizes the person making or allowing the placement of a telephonic sales call by
telephone call, text message, or voicemail transmission to deliver or cause to be delivered to the
called party a telephonic sales call using an automated system for the selection or dialing of
telephone numbers, the playing of a recorded message when a connection is completed to a
number called, or the transmission of a prerecorded voicemail; and
 Includes the telephone number to which the signatory authorizes a telephonic sales call to be
delivered.24
Prior express written consent must include a clear and conspicuous disclosure informing the called
party that:
 By executing the agreement, the called party authorizes the person making or allowing the
placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to
the called party using an automated system for the selection or dialing of telephone numbers or
the playing of a recorded message when a connection is completed to a number called; and
 He or she is not required to directly or indirectly sign the written agreement or to agree to enter
into such an agreement as a condition of purchasing any property, goods, or services. 25
There is a rebuttable presumption that a telephonic sales call made to any Florida area code is a call
made to a Florida resident or to a person in Florida at the time of the call. 26
Do Not Call - Violations
A telephone solicitor who violates the DNC provisions is subject to an injunction and a civil penalty27
with a maximum fine of $10,000 per violation, or an administrative fine28 of up to $1,000 per violation.
Additionally, a telephone solicitor may be held responsible for the consumer’s attorney fees and
costs.29
A party who was called in violation of the Do Not Call Act may bring an action for an injunction and
actual damages or $500, whichever is greater.30 Courts that find that a defendant willfully or knowingly
21 S. 501.059(8)(b), F.S.
22 DACS, Florida Do Not Call, https://www.fdacs.gov/Consumer-Resources/Florida-Do-Not-Call (last visited Mar. 21, 2023).
23 S. 501.059(8)(a), F.S.
24 S. 501.059(1)(g), F.S.
25 S. 501.059(1)(g)4., F.S.
26 S. 501.059(8)(d), F.S.
27 S. 501.059(9)(a), F.S.
28 S. 501.059(9)(b), F.S.
29 S. 501.059(11), F.S.
30 S. 501.059(10)(a), F.S.
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 violated these provisions are authorized to increase the amount of the award to not more than three
times the amount of damages.31
Federal Telephone Consumer Protection Act (TCPA) History
In an effort to address a growing number of telephone marketing calls, Congress enacted the
Telephone Consumer Protection Act (TCPA) in 1991. The TCPA restricts the making of telemarketing
calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages.
The rules apply to common carriers as well as to other marketers. In 1992, the Commission adopted
rules to implement the TCPA, including the requirement that entities making telephone solicitations
institute procedures for maintaining company-specific do-not-call lists.32
In July 2015, the Federal Communications Commission (FCC) established rules indicating that
telephone carriers can block unwanted calls at the request of consumers. 33 Currently there are a
number of call-blocking applications that provide some relief from unwanted calls and spam calls.34
On November 16, 2017, the FCC adopted new rules to allow voice service providers to proactively
block certain types of robocalls that are likely to be fraudulent because they come from certain types of
phone numbers, including those that do not or cannot make outgoing calls. 35 For example, perpetrators
have used IRS phone numbers that do not dial out to impersonate the tax agency, informing the people
who answer that they are calling to collect money owed to the U.S. government. Such calls appear
legitimate to the person who receives them and may often result in fraud or identity theft. Service
providers can now block such calls, as well as calls from invalid or illegitimate numbers. 36
The FCC requires telemarketers to transmit caller identification information, including the number and
name of the caller. The telephone number provided must permit any individual to make a do-not-call
request during regular business hours. Moreover, any person or entity that engages in telemarketing is
prohibited from blocking the transmission of caller identification information. However, tax-exempt
nonprofit organizations are exempt from compliance with these rules. 37
With regard to telephone carriers, the FCC allows carriers to offer their customers external call-blocking
applications on their landlines and allows carriers to directly block certain illegal robocalls. In December
2019, Congress enacted the “TRACED Act” to aid enforcement efforts between law enforcement
agencies and the private sector on traceback issues, and required the FCC to issue rules “for the
registration of a single consortium that conducts private-led efforts to trace back the origin of suspected
unlawful robocalls.”38 In July of 2020, the FCC designated the US Telecom-led Industry Traceback
Group (ITG) as the Official Consortium for coordinating industry-led efforts to trace back the origin of
suspected unlawful robocalls.39
According to the ITG’s first annual report, over 100 companies participated in over 1,000 ITG traceback
investigations in 2019, identifying more than 10 million illegal robocalls and resulting in more than 20
subpoenas and/or civil investigative demands from federal and state enforcement agencies.40
31 S. 501.059(10)(b ), F.S.
32 Federal Communications Commission, FCC Actions on Robocalls, Telemarketing, https://www.fcc.gov/general/telemarketing-and-
robocalls (last visited Mar. 21, 2023).
33 Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telecommunications Consumer Protection
Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015).
34 CTIA, The W