Like it or not, telemarketing is a huge component of American businesses, and the healthcare industry is no exception. Many insurance companies, physicians, medical equipment and pharmacy providers heavily rely on telemarketing to expand their client base.
Take a moment to reflect – are you engaged in telephonic marketing or sales? Be it a healthcare businesses’ own internal based sales team or a third party providing such services, many individuals and entities are telemarketing and don’t even realize. If conducting telephonic sales either out of a Florida based location, or if calling into Florida, then listen up! There is a Florida telemarketing law that requires all such marketers to register for a telemarketing license or file for an exemption therefrom. While it’s not a new regulation, it’s one that is often overlooked and one that carries serious consequences for non-compliance.
What am I talking about?
Florida Statute Title XXXIII, Ch. 501 §§ 501.601 through 501.626, or more colloquially known as The Florida Telemarketing Act.
BEFORE doing business, The Florida Telemarketing Act requires individuals or entities looking to conduct telemarketing activities within the State to either (1) obtain a Commercial Telephone Seller Business License, as well as to license its individual sales representatives, or (2) have an approved exemption from such licensure on file. For the purposes of the Florida Telemarketing Act, this includes individuals/entities calling either into or calling out of the State! Unwanted telemarketing calls are one of the largest sources of consumer complaints in America; an individual or entity engaged in telemarketing will not “fly under the radar.” A called party will inevitably file a grievance with the state or federal government over telemarketing calls. If the activity falls under Florida’s jurisdiction, regulators will investigate and will penalize those persons or businesses involved if they are not adhering to the regulations outlined in the Florida Telemarketing Act. So what’s required to become licensed or exempted?
The license or exemption is issued by the Florida Department of Agriculture and Consumer Services – Division of Consumer Services (“FDACS”). A commercial telephone seller must obtain a license from FDACS, in accordance with §501.605, or have an exemption from such licensure on file, in accordance with §501.604.
Option 1 – Apply for the Commercial Telephone Seller Business License
If it’s been determined that there is no applicable exemption from licensure, see below, and that the Commercial Telephone Seller Business License is required, the application must be submitted and licensure received prior to engaging in telephonic sales. The application is accessible online and either can be electronically submitted or mailed in (see http://forms.freshfromflorida.com/10001.pdf).
To become licensed pursuant to §501.605 an application must be submitted setting forth, among other items:
- applicant identification, including previous telemarketing experience, civil/criminal disclosures;
- all telephone numbers that will be used and affiliated calling address;
- list of owner(s), manager(s) and salesperson(s);
- copy of any script, outline, or presentation that a salesperson will use;
- sales information/literature provided to salesperson(s) and/or prospective purchaser; and
- copy of specified business entity documents (i.e., Articles of Incorporation and Bylaws), as applicable.
Additionally, there is a yearly licensing fee of $1,500 and form of security required – either via bond, letter of credit, or certificate of deposit, with a minimum value of $50,000.
The business must also ensure appropriate licensure each and every salesperson making telemarketing calls. Each individual salesperson must fill out an application, separate and apart from the Commercial Telephone Seller Business License Application. There individual telemarketing salesperson applications require similar disclosures concerning civil/criminal matters, past experience as a telephone salesperson, as well as the payment of a $50 yearly licensing fee. See §501.607. Prior to engaging in any telemarketing, an individual salesperson must either have applied for and received their personal telemarketing license or obtain interim operating authority for operating temporarily as an unlicensed person for a maximum of 90 days. See Florida Administrative Code Rule 5J-6.005(2).
Once in receipt of the applicable business and individual licenses, telemarketing can commence, but it must be done in accordance with the Florida Telemarketing Acts’ requirements. Among those requirements are necessary disclosures that must be made on the call, which include but are not limited to notifying the called party:
- within first 30 seconds of a call, the commercial telephone seller or salesperson’s must identify themselves by their true name, the company they are making solicitations for, and the goods/services being sold; and
- if a sale or an agreement to purchase is completed, the commercial telephone seller must inform the purchaser of their cancellation rights and state their and the business’s telemarketing license numbers.
If it is represented to the called party that they may be eligible to receive any gift, prize, bonus or the like, there are additional disclosures that must be made. Additionally, any purchase of consumer goods or services ordered as a result of commercial telephone solicitation must be followed by a signed written contract meeting the requirements of §501.615; otherwise, such a sale is not valid and enforceable.
Option 2 – Apply for the Exemption from the Commercial Telephone Seller Business License
Many businesses that apply for and receive the Commercial Telephone Seller Business License don’t realize that they fall into one of the statutorily recognized exemptions (from licensure) as outlined in the Florida Telemarketing Act. These businesses, which could have otherwise applied for the exemption, unnecessarily spend $1,500 per year on its business license and $50 per year on each individual salesperson. As such, prior to applying for the Commercial Telephone Seller Business License, carefully review the exemptions to see if one may be applicable.
Twenty-eight (28) exemptions from the licensure requirement are listed in the Florida Telemarketing Act. See §501.604. The caveat is, however, that an entity or individual cannot engage in telemarketing activities merely by virtue of meeting one of these exemptions – an affidavit of exemption must be filed with and approved by the FDACS prior to engaging in any calls or risk running afoul of the statute and being subjected to disciplinary action.
Applicable to both Licensed and Exempted entities/persons
The following provisions of the Florida Telemarketing Act are applicable to both Licensed and Exempted operations:
- 501.608 – requirement to have and display either the License or Exemption at all times;
- 501.616(6) – curfew of calling hours; no calls can be made prior to 8am nor later than 9pm in the time zone of the called party; and
- 501.616(7) – requirement to allow transmission of the calling party’s name and phone number when the equipment or service used by the calling party are able to do so (i.e., no caller ID spoofing).
- Penalties for violating the provisions of The Florida Telemarketing Act; among other actions, FDACS can issue administrative fines of up to $10,000 per violation of the statute, seek injunctions, and also refer for criminal prosecution, as a violations of the statute can be considered third degree felonies!
- Applications for both Business Telemarketing & Individual Telemarketing Seller Licenses may be denied if the applicant was subject to and/or convicted of certain civil and criminal actions.
- Any business applying for or renewing a local occupational license to conduct business as a commercial telephone seller must have an active license or a copy of the affidavit of exemption before the local occupational license may be issued or reissued. See 501.608(4).
- FDACS must be notified within 10 days of any change to the information submitted in the license or exemption application.
- Businesses should have appropriate policies and procedures in place outlining their operational efforts of complying with The Florida Telemarketing Act.
This article only discusses instances in which a Florida Telemarketing Business License or Exemption may be applicable, and is not intended to serve as an exhaustive list pertaining to compliance with The Florida Telemarketing Act’s requirements. Before engaging in any telemarketing activities directed into or coming from the state of Florida, businesses and individuals need to not only be appropriately licensed or exempted, but should thoroughly review The Florida Telemarketing Act to ensure compliance with all of its requirements as applicable to its operations. This includes but is not limited to necessary disclosures, scrubbing ‘do not call’ lists, and other statutory mandates. Additionally, the necessity to be licensed or exempted prior to engaging in telemarketing activities as outlined in this article only pertains to Florida – a majority of other states have some form of licensure (or exemption) requirements! A state by state analysis must be conducted for all states that a business/person will be conducting telemarketing sales from or into.
It’s also absolutely vital to note that state telemarketing registration (in each and every state that may require it) is just one part of the larger picture of telemarketing compliance as a whole. Other aspects of telemarketing compliance that any person or business engaged in telemarketing must be aware of and adhere to, in an effort to help insulate from liabilities, include but are not limited to:
- State and Federal ‘Do Not Call’ list adherence;
- Federal Telephone Consumer Protection Act (“TCPA”) and state restrictions on usage of automated dialing technology, pre-recorded voicemails, and Caller ID spoofing; and
- State and Federal general advertising and marketing regulations.
Violations of these regulations carry severe civil and/or criminal penalties, depending on the violation.
Telemarketing is a great way to reach a large audience concerning the products or services a business may have to offer. However, it’s also almost a guaranteed way to generate consumer complaints. As such, it’s absolutely imperative to ensure that thorough due diligence is conducted on all applicable state and federal laws, either through exhaustive internal research of through the advice of competent legal counsel, and to have appropriate policies and procedures in place before engaging in any telemarketing activities.