The state telemarketing law amendment trend continues. On June 26, 2023, Connecticut Governor Ned Lamont signed S.B. 1058 into law. Connecticut General Assembly, Substitute for Raised S.B. No. 1058. This bill makes important changes to Connecticut’s telemarketing laws. See S.B. 1058, 2023 Leg., Reg. Sess. (Conn. 2023). These changes go into effect October 1, 2023. Id. Here are the highlights:
1. S.B. 1058 creates new requirements for telemarketing calls’ content and timing.
- Under S.B. 1058, anyone making a “telephonic sales call” to a consumer must disclose their “identity, the purpose of [the call] and the identity of the entity” on whose behalf the caller is contacting the consumer no later than ten seconds after the call begins. Id. at § 13(d); see also S.B. 1058 § 8(18) (defining “telephonic sales call”).
- At the beginning of any “telephonic sales call,” the caller must “ask the consumer whether such consumer wishes to continue such telephonic sales call, end such telephonic sales call or be removed from [the caller’s] list.” Id. at § 13(e).
- Anyone making a “telephonic sales call” has to end the call “not later than ten seconds after the consumer states or otherwise indicates that such consumer wishes to end such telephonic sales call.” Id. at § 13(f).
- Before Connecticut passed S.B. 1058, telephone solicitors only needed a consumer’s prior express written consent to make “an unsolicited, automatically dialed, recorded telephonic sales call.” Conn. Gen. Stat. § 42-288a(h). S.B. 1058 now requires a consumer’s prior express written consent for any “telephonic sales call.” Id. at § 13(l)-(m).
- S.B. 1058 reduces the time frame within which telemarketers may call consumers by one hour, now only permitting “telephonic sales calls” between the hours of 9 a.m. and 8 p.m. local time. Id. at § 12(c). Note that this time frame is more restrictive than the Telephone Consumer Protection Act (TCPA).
2. S.B. 1058 codifies more expansive definitions of key terms and increases the applicability of Connecticut’s telemarketing requirements.
- The bill broadens the definition of a telemarketer to include any person, or any affiliate or subsidiary of any person, doing business in the state that makes, or causes to be made, a telephonic sales call; initiates the sale, lease or rental of consumer goods or services; or offers gifts or prizes with the intent to sell, lease or rent consumer goods by (A) telephonic means; (B) use of television, radio or printed advertisement, postcard or other written notice with requests that the resident consumer contact the seller by telephone to inquire about goods or services, and such advertisement, postcard or notice does not contain the price or a description of the goods or services; (C) automated dialing system; (D) recorded message device; (E) soundboard technology; (F) over-the-top message; or (G) text or media message. S.B. 1058 § 8(17) (revisions underlined). It also incorporates a new, very nuanced definition of “telephonic sales call,” with potentially broad effect. Id. at § 8(17).
- S.B. 1058 defines “automated dialing system” as “a device that (A) automatically dials a telephone number, or (B) makes a connection to an end user by means of an automated system that is used to dial a telephone number and transmit a voice communication.” Id. at § 8(1).
- S.B. 1058 adds “text or media message[s]” and “over-the-top message[s]” to “regulated technology.” Id. at § 8(11), § 8(19). This change brings messaging apps such as WhatsApp and iMessage within Connecticut’s expressly regulated technologies. In comparison, such messages remain a gray area under the TCPA and in some instances have even been expressly excluded from Federal Communications Commission (FCC) regulation under the TCPA. See In the Matter of Targeting & Eliminating Unlawful Text Messages Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, No. 02-278, 2023 WL 2582658, at *1 n.1 (OHMSV Mar. 17, 2023) (“The scope of our decision here is text messaging originating from NANP numbers that use the wireless networks, e.g., Short Message Service (SMS) and Multimedia Messaging Service (MMS), not over-the-top (OTT) messaging, such as iMessage and WhatsApp or Rich Communications Services (RCS). See 47 CFR § 64.1600(o) et seq.”); In the Matter of Petitions for Declaratory Ruling on Regul. Status of Wireless Messaging Serv., 33 F.C.C. Rcd. 12075 (2018) at *12107 (messaging apps are outside the FCC’s “regulatory tentacles”).
- The bill adds “soundboard technology” to its list of covered technologies, defining it as “a technology that allows an individual to communicate with a call recipient in real[]time by playing a recorded audio message instead of using the individual’s voice.” Id. at § 8(16).
- S.B. 1058 provides a definition of “voice communication” which “(A) means a communication that is made by an individual, in whole or in part, by using an artificial message, a prerecorded message or a live voice, (B) includes, but is not limited to, a voice message transmitted directly to a recipient’s voicemail regardless of whether the recipient’s phone rings as part of the transmission, and (C) does not include an automated warning required by law.” Id. at § 8(20). This definition expressly covers technologies like ringless voicemail that do not cause a recipient’s phone to ring before being delivered.
- Previously, Connecticut relied on the definition of “prior express written consent” set forth in the TCPA’s regulations. Conn. Gen. Stat. § 42-288a(a)(6). S.B. 1058 now provides the state’s own statutory definition of the term:
“Prior express written consent” means a written agreement that (A) discloses (i) the means by which the telemarketer will call or contact the consumer, including, but not limited to, a telephone system, an automated dialing system, a recorded message device, soundboard technology, over-the-top messaging or text or media messaging, and (ii) the telephone number to which the consumer authorizes the telemarketer to deliver, or cause to be delivered, advertisements or telemarketing messages, (B) clearly and conspicuously authorizes the telemarketer to deliver, or cause to be delivered, to the consumer advertisements or telemarketing messages by way of the means (i) described in subparagraph (A)(i) of this subdivision, and (ii) disclosed in such written agreement, and (C) bears the signature of the consumer[.] S.B. 1058 § 8(14), 2023 Leg., Reg. Sess. (Conn. 2023).
This definition is distinct from and, in some ways, requires more specificity than the TCPA.
3. S.B. 1058 likely makes it more difficult for alleged violators to avoid liability.
- Before S.B. 1058, a telemarketer was not liable for calls violating Connecticut’s telemarketing laws if the telemarketer could demonstrate that “(1) Such telephone solicitor established and implemented written procedures and trained its employees to follow such procedures to comply with subdivision (1) of subsection (c) of this section; (2) such telephone solicitor deleted from its call list any listing of a consumer on the then current quarterly ‘sales solicitation calls’ listing maintained pursuant to subsection (b) of this section; and (3) such call was made inadvertently.” Conn. Gen. Stat. § 42-288a(g).
S.B. 1058 removes the above safe harbor, preserving only the language that “[a] violation of any of the provisions of this section shall be deemed an unfair or deceptive trade practice under subsection (a) of [the Connecticut Unfair Trade Practices Act,] section 42-110b.” S.B. 1058 § 13(k), 2023 Leg., Reg. Sess. (Conn. 2023). Section 42-110b(a), in turn, prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen. Stat. § 42-110b(a). While the Connecticut Department of Consumer Protection has jurisdiction over the act, “it is most commonly used as a private right of action.” State of Connecticut, About the Connecticut Unfair Trade Practices Act (CUTPA). The CUTPA allows plaintiffs “to recover actual damages” and also provides the potential for punitive damages. Conn. Gen. Stat. § 42-110g(a). For willful violations, CUTPA provides civil penalties of “not more than five thousand dollars for each violation.” Conn. Gen. Stat. § 42-110o(b). Plaintiffs may also recover “costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery.” Conn. Gen. Stat. § 42-110g(a)).
- S.B. 1058 maintains a high penalty for telemarketing law violations, as “any person, including, but not limited to, any telemarketer, who is liable … shall be fined not more than twenty thousand dollars for each violation.” S.B. 1058 § 13(o).
- S.B. 1058 establishes “a rebuttable presumption that a telephonic sales call made to a resident consumer or to a telephone number with a Connecticut area code has taken place in this state.” Id. at § 12(c). This tracks several other recent state amendments that impose such a presumption. See below for Manatt’s previous thought leadership regarding the Florida Telephone Solicitation Act (FTSA) and Oklahoma Telephone Solicitation Act:
Why it matters
S.B. 1058 creates new requirements that telemarketers must follow and reaches more broadly, both in terms of the callers and technologies regulated, than its predecessor. S.B. 1058 also makes it harder for alleged violators to avoid liability while establishing a presumption that telephonic sales calls to Connecticut residents and phone numbers will be subject to the statute. In light of these changes and the prospect of a private right of action, anyone engaged in telemarketing in Connecticut should ensure that they comply with S.B. 1058. See id. at § 9(d). Callers should also be attuned to discrepancies between the TCPA and Connecticut’s increased restrictions, including the differences in permissible call times, call content obligations, prior express written consent requirements and covered technologies.
We appreciate the contribution of Manatt Summer Associate Ben LaZebnik to this article.