Washington
A new quasi-mini Telephone Consumer Protection Act (TCPA) bill has passed in Washington state and will go into effect on June 9, 2022. The new law is more limited than the Florida version but there are a few similarities. It governs “telephone solicitation,” defined as an “unsolicited initiation of a telephone call…for the purpose of encouraging the person to purchase property, goods, or services or soliciting donations….”
A vague but potentially broad exception that we expect will be heavily litigated excludes “[c]alls made in response to a request or inquiry by the called party…[including] calls regarding an item that has been purchased” within the past 12 months. This is arguably a less rigorous standard for consent than is required under the TCPA or the mini-TCPA statutes in Florida and Oklahoma. Unlike in some of the other state mini-TCPA laws, the exemptions are otherwise relatively limited. There is no exception for calls made to set an appointment for a sales pitch, for example. An exception for nonprofits exists but arguably only allows calls to their actual registered members. Calls “soliciting the expression of ideas, opinions or votes” are also excluded.
Among other things, the new law requires calling parties to cease calls if the consumer “states or indicates” that they do not wish to be called. Callers may stay on the line for only ten seconds after such statement or indication is raised. Callers must also, within the first 30 seconds of the call, identify themselves as individuals (arguably by real name, though the statute does not use that express term) and the company on whose behalf they are calling. If the consumer “states or indicates” they do not want to be called, the calling party may not call again for one year.
Furthermore, upon a statement or indication that the consumer does not wish to be called, the calling party is then prohibited from selling or giving away the consumer’s contact information to any third party except the entity from which it bought the lead.
In what is clearly a developing trend, no calls are permitted before 8 a.m. or after 8 p.m., regardless of consent, consistent with the Florida and Oklahoma statutes.
The statute expressly authorizes actions by the (very active) Washington attorney general and also a private right of action for consumers, but only for “repeated” violations. For a single call, there is no private right of action, and the attorney general may only issue a warning. The statutory penalty is $100 per violation plus reasonable attorneys’ fees and costs to prevailing plaintiffs. There is no second tier of willful or knowing penalties.
Industries that make marketing calls will need to carefully consider how to implement compliance programs to address the new law, especially with regard to consumers who merely “indicate” without stating they would not like to be called further.
Oklahoma
On May 20, 2022, the Telephone Solicitation Act of 2022 became law in Oklahoma. This is a critical new law that largely tracks the so-called mini-TCPA Florida Telephone Solicitation Act (TSA) and regulates telemarketing far beyond the reach of the federal TCPA. It goes into effect November 1, 2022. The bill passed with almost unanimous bipartisan support and was signed by Republican governor Kevin Stitt who, before politics, was the founder of a nonbank independent mortgage lender operating in dozens of states (Gateway Mortgage Group).
Like the Florida TSA, the Oklahoma TSA applies to telephonic sales calls that involve “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.” Thus, most critically, an “automated system” under the Oklahoma TSA is not limited to equipment that would qualify as an automatic telephone dialing system (ATDS) under the TCPA. Systems that do not randomly or sequentially generate numbers but that do have some automated method of selection (linking a live person to an agent) or dialing (system dials then links to an agent) are arguably covered. And some will no doubt attempt to stretch the statute even more broadly to cover the human click-to-call systems now (most courts are holding) exempt from the federal TCPA’s auto-dialer definition. The disjunctive “selection or dialing” term in Oklahoma’s statute is the same as the one employed in the current version of the Florida TSA.
The Oklahoma TSA prohibits the use of any such “automated system” to make a “telephonic sales call” without the “prior express written consent” of the “called party.” To obtain a consumer’s prior express written consent to receive calls made using an automated system, a caller must provide a clear and conspicuous disclosure that clearly authorizes the placement of a commercial telephone call. Electronic signatures are permitted under the act, but it is unclear whether Oklahoma courts will recognize recorded oral consents as electronic written ones as sometimes applies in federal TCPA jurisprudence.
Tracking with the Florida TSA, the new Oklahoma law also prohibits “more than 3 calls in a 24 hour period,” even to consumers who have given prior express written consent, and requires that all telephonic sales calls cease between the hours of 8 p.m. and 8 a.m. The Oklahoma law expressly allows for a private right of action to enforce these provisions. The law also requires callers to use their own voices, stating it is unlawful to “intentionally alter the voice of the caller in an attempt to disguise or conceal the identity of the caller in order to defraud, confuse, or financially or otherwise injure the recipient of a telephonic sales call or in order to obtain personal information from the recipient of a telephonic sales call, which may be used in a fraudulent or unlawful manner.”
The potential damages are the usual $500 per violation, which can be trebled for willful or knowing violations. Of note, however, is that there are no provisions awarding attorneys’ fees to successful plaintiffs.
Also helpful is that the bill enumerates many broad and actually useful exemptions, including calls made for certain noncommercial purposes, calls made to a recipient with an established business relationship, calls by most licensed financial institutions, investment advisors, realtors, and calls by any retailer with a physical footprint generating most of its revenue from a physical store rather than telephone solicitations. There are other more niche exceptions such as for pesticide companies. Also, like Florida’s TSA, Oklahoma exempts calls made to set up an appointment to make an in-person sales pitch, but only if there is neither payment nor commitment to payment made on the phone call. Vendors who do not fit the exemptions but are calling on behalf of entities that do are also exempt in some circumstances if they have been providing telemarketing services for five years or more and 75% or more of its revenue comes from making calls on behalf of statutorily exempt entities.
Businesses that make calls to Oklahoma residents or Oklahoma area codes should review their compliance programs to ensure compliance with the Oklahoma law. Oklahoma is just one of a growing number of states seeking to enact their own state-specific telemarketing laws via statutory schemes we expect to continue to closely track the difficult and controversial Florida statute.