What you need to know about Washington and Oklahoma’s new mini-TCPA laws | Manatt, Phelps & Phillips, LLP
A new quasi-mini Telephone Consumer Protection Bill (TCPA) was 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 some similarities. It governs “telephone solicitation”, defined as “the unsolicited initiation of a telephone call…for the purpose of encouraging the person to purchase goods, goods or services or to solicit donations…”.
A vague but potentially broad exception that we believe will be strongly contested excludes “[c]everything is done in response to a request or inquiry from the called party…[including] calls regarding an item that was purchased” within the past 12 months. This is arguably a lower standard of consent than that required under the TCPA or mini-TCPA statutes in Florida and Oklahoma. Unlike some of the other state mini-TCPA laws, the exemptions are otherwise relatively limited. There is no exception for calls made to set up an appointment for a sales pitch, for example. An exception for non-profit organizations exists, but presumably only allows calls to their actually registered members. Calls “soliciting the expression of ideas, opinions or votes” are also excluded.
Among other things, the new law requires callers to stop calling if the consumer “declares or indicates” that they do not wish to be called. Callers can only stay on the line ten seconds after such statement or indication is issued. Callers must also, within the first 30 seconds of the call, identify themselves as individuals (presumably by their real name, although the law does not use this term expressly) and the company on behalf of which they call. If the consumer “declares or indicates” that he does not wish to be called, the caller may not call back for one year.
Further, upon declaration or indication that the consumer does not wish to be called, then the caller is prohibited from selling or giving the consumer’s contact information to any third party other than the entity from which they purchased the lead.
In what is clearly a developing trend, no calls are allowed before 8 a.m. or after 8 p.m., regardless of consent, per Florida and Oklahoma laws.
The law expressly authorizes actions by the (very active) Washington Attorney General as well as a private right of action for consumers, but only for “repeat” violations. For a single appeal, there is no private right of action, and the Attorney General can only issue a warning. The legal penalty is $100 per violation, plus reasonable attorneys’ fees and costs for successful plaintiffs. There is no second level of deliberate or conscious sanctions.
Industries that make marketing calls will need to think carefully about how to implement compliance programs to respond to the new law, particularly with regard to consumers who simply “indicate” without declaring that they do not no longer wish to be called.
On May 20, 2022, the Telephone Solicitation Act of 2022 became law in Oklahoma. This is key new legislation that largely follows the so-called mini-TCPA Florida Telephone Solicitation Act (TSA) and regulates telemarketing far beyond the scope of the federal TCPA. It takes effect Nov. 1, 2022. The bill passed with nearly unanimous bipartisan support and was signed by Republican Gov. Kevin Stitt who, before politics, was the founder of an independent non-bank mortgage lender operating in dozens of states (Gateway Mortgage Group).
Like Florida’s TSA, Oklahoma’s TSA applies to telephone sales calls that involve “an automated system for selecting or dialing telephone numbers or playing a recorded message when a connection is established with a called number”. So, most critical, an “automated system” under the Oklahoma TSA is not limited to equipment that would be considered an Automatic Telephone Dialing System (ATDS) under the TCPA. Systems that do not generate numbers randomly or sequentially, but have an automated selection method (linking a living person to an agent) Where numbering (system dials then links to an agent) are probably covered. And some will no doubt attempt to expand the law even more broadly to cover human click-to-call systems now (most courts find) exempt from the federal TCPA autodialer definition. The disjunctive term “selection or numbering” in Oklahoma law is the same as that used in the current version of the Florida TSA.
The Oklahoma TSA prohibits the use of such an “automated system” to make a “telephone sales call” without the “prior express permission”. writing consent” of the “called party”. To obtain a consumer’s express prior 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 allowed under the law, but it’s unclear whether Oklahoma courts will recognize oral electronic written consents, as sometimes applies in federal TCPA case law.
Following Florida’s TSA, Oklahoma’s new law also prohibits “more than 3 calls in a 24-hour period,” even to consumers who have given express written consent in advance, and requires all commercial telephone calls to cease. between 8:00 p.m. and 8:00 a.m. Oklahoma law expressly permits a private right of action to enforce these provisions. The law also requires callers to use their own voice, stating that it is illegal to “intentionally alter the voice of the caller for the purpose of disguising or concealing the identity of the caller in order to defraud, confuse or to financially or otherwise injure the recipient of a commercial telephone call or in order to obtain personal information from the recipient of a commercial telephone call, which may be used fraudulently or unlawfully.
Potential damages are the usual $500 per violation, which can be tripled for willful or knowing violations. It should be noted, however, that there is no provision awarding attorneys’ fees to successful plaintiffs.
It is also helpful that the bill lists many general and actually useful exemptions, including calls made for certain non-commercial purposes, calls made to a recipient with an established business relationship, calls from most licensed financial institutions , investment advisors, real estate agents and calls from any retailer. with a physical footprint generating most of its revenue from a physical store rather than telephone solicitations. There are other niche exceptions, such as for pesticide manufacturers. Also, like Florida’s TSA, Oklahoma exempts calls made to schedule an appointment to make an in-person sales pitch, but only if there is no payment or commitment to pay made during the phone call. Sellers who do not meet the exemptions but call on behalf of entities that do are also exempt under certain circumstances if they have been providing telemarketing services for five or more years and 75% or more of their revenue is from calls on behalf of legally exempt entities.
Companies that call Oklahoma residents or Oklahoma area codes should review their compliance programs to ensure compliance with Oklahoma law. Oklahoma is just one of many states seeking to enact their own state-specific telemarketing laws through statutory schemes. We plan to continue to closely monitor Florida’s difficult and controversial law.