This article reviews key points of Florida’s new “Mini-TCPA” and its potential impact on your SMS marketing efforts.
Effective July 1, 2021, the state of Florida enacted a new law that is essentially a stricter version of the federal Telephone Consumer Protection Act (TCPA). The law, CS/SB 1120, known as Florida’s "Mini-TCPA," puts tighter boundaries on who you can send to and when, as well as how many messages a recipient can receive in a certain timeframe.
This information is not legal advice. Klaviyo recommends that you consult with your legal counsel to make sure that you comply with the TCPA and all other applicable laws in connection with your text message marketing.
Florida’s Mini-TCPA introduced several important distinctions from the requirements of the federal TCPA. The following sections provide an overview of the key differences between the two laws.
Broadening the Definition of an Autodialer
Under Florida’s Mini-TCPA, an autodialer is defined as: “An automated system for the selection or dialing of telephone numbers or the playing of a recorded message.” This is broader than the definition under the federal TCPA. The TCPA’s definition of autodialers only includes devices that use a sequential or random number generator.
Forbidding Automated Calls and Texts to Those without Consent
The Mini-TCPA forbids the use of automated technology or pre-recorded responses to place calls or send text messages unless you have “prior express written consent.” This applies even if the call or text is a direct response to a customer’s question, or if you are following up on a purchase, as with transactional messages. If you don’t have this consent, using an automated system for any responses or follow-ups could result in fines.
Limiting When You Can Call and Send Messages
The statute allows calling or texting only between the hours of 8 am and 8 pm in the recipient’s time zone (shortened from 8 am to 9 pm in the federal TCPA). Note that Florida crosses two time zones, Eastern and Central.
Restricting the Number of Call and Text Attempts
The law limits marketers to three attempts to contact a recipient (via call or text) within a 24-hour period. This applies even if a business calls or texts from different numbers.
Forbidding the Hiding of the Caller or Sender
The statute prohibits marketers from intentionally hiding their identity or number. Further, they cannot use technology that changes how the caller name or number appears to recipients.
Who the Mini-TCPA Covers
The law presumes that any calls or texts made to a Florida area code are to either:
- A Florida resident
- Someone in Florida at the time
Both groups are covered under this legislation, which potentially increases the pool of potential plaintiffs.
Further, similar to TCPA, this law gives aggrieved parties a private right to action. A plaintiff who wins their case may:
- Obtain an injunction against the other party
- Recover their actual money damages or $500 (or $1,500 for willful violations), whichever is higher, plus attorney fees and costs
Best Practices for Klaviyo SMS
While we recommend that you consult an attorney to ensure that your text messaging program complies with the Mini-TCPA, other SMS laws and regulations, and carrier requirements, there are some general guidelines and best practices you can follow:
- Get express consent in writing from anyone you plan to text
- Turn on Smart Sending, particularly for any flow messages that could send out around the same time as other messages, to limit the number of text messages someone can receive from you in a 24-hour period
- Only send messages between 9 am and 8 pm in the recipient’s local time zone; you can configure the SMS messages in your flows to delay sending until a specific time of day in the recipient's local time zone (i.e., at a specific time between 9 am and 8 pm)
- Indicate who the message is coming from in every message
- Provide opt-out language in every message
Learn more about the TCPA.
Read about express consent versus implied consent.