In state law news, the West Virginia legislature is considering two new telemarketing bills, while a new law has taken effect in Maryland.
West Virginia
West Virginia lawmakers are looking at two pieces of legislation that would increase the state’s oversight of telemarketing.
Senate Bill 500 would add a new provision dubbed the “Telephone Consumer Protection Act” (TCPA) to the state’s consumer protection law, requiring prior written consent for a telephone solicitation involving an automated system for the selection or dialing of telephone numbers or the playing of recorded or artificial voice messages, prohibiting the blocking of caller ID information or the display of different information from the actual caller and placing limitations on the timing (no calls between 8 p.m. and 8 a.m.) and number (no more than three calls per 24-hour period) of telephone solicitations.
Pursuant to the proposed legislation, a telephone solicitation that is an isolated transaction and not performed in the course of a pattern of repeated transactions of a similar nature would be exempt, as are business-to-business sales where the telephone solicitor has been lawfully operating continuously for at least three years under the same business name and a telephone solicitation for religious, charitable, political or educational purposes. Notably, the West Virginia bill includes a narrower “existing business relationship” exception than the federal TCPA or other similar state laws, exempting only contact that was “initially intended for informational purposes only” and becomes a telephone solicitation “based on further inquiry from the customer.”
In addition, the bill would prohibit the intentional alteration of the voice of the caller in an attempt to disguise or conceal identity in order to defraud, confuse, or financially or otherwise injure the called party, or to obtain personal information to be used in an unlawful manner.
The bill features a private right of action, with actual damages of $200 per violation available for plaintiffs, and the possibility of attorneys’ fees and expenses.
A second measure, House Bill 4886, would establish a $1,000 civil administrative penalty for a phone company that knowingly allows a telemarketing campaign to call a resident of the state, using a United States- or West Virginia-based phone number, while providing no ability for an individual to call that company back at that number and speak to a representative of the company.
Call centers registered in the U.S. and foreign call centers contracted with registered U.S. call centers are exempt from this proposed legislation.
Maryland
In Maryland, a new telemarketing law that took effect on Jan. 1, 2024, imposes prior express written consent requirements for telephone solicitations that involve “an automated system for the selection or dialing of telephone numbers,” among other limitations.
The Stop the Spam Calls Act of 2023 prohibits making “telephone solicitations” between the hours of 8 a.m. and 8 p.m. in the called party’s time zone, permits a maximum of three telephone solicitations to the same number per day, prohibits the use of technology or voice altering to deliberately conceal the identity of the caller and creates a rebuttable presumption that any call made to a Maryland area code is made to a Maryland resident.
The Maryland law includes the same more restrictive “existing business relationship” exemption as does the West Virginia law—it exempts from the definition of telephone solicitations only communications between a business and an existing customer only when the call was “initially intended for informational purposes only” and becomes a telephone solicitation “based on further inquiry from the customer.”
The law features a private right of action for damages and/or reasonable attorney’s fees, as well as a provision enabling civil fines of up to $10,000 per violation or $25,000 for repeat violations.
Why it Matters
If the proposed laws are enacted in West Virginia, companies would face additional, tougher requirements in the state. Companies doing business in Maryland should be aware of the changes and ensure compliance with the new law. Further, callers relying on the federal TCPA’s definition of “established business relationship” for exemptions to the rules governing telephone solicitations should implement additional restrictions for calls to Maryland residents (and West Virginia residents, if Senate Bill 500 passes). In fact, these provisions are a snapshot example of why having a state law compliance plan is important, particularly when relying upon exemptions under the TCPA and/or attempting to work around the TCPA’s consent requirements.