Short Messages, Big Penalties: A Growing Number of State Laws Impose Additional Restrictions and Significant Penalties on Businesses for Consumer Calls and TextsJuly 29, 2022
Oklahoma recently joined a growing number of states that have passed laws concerning telemarketing and direct business-to-consumer communications. While many companies may be aware of the requirements of the federal Telephone Consumer Protection Act (“TCPA”), companies must also take steps to ensure that their marketing initiatives and customer communications comply with applicable state telemarketing laws. While many of these state laws appear to be similar at first glance, nuances lie within the specifics. Companies must bear in mind that their practices should meet the requirements of the states where their consumers are contacted.
Like the TCPA, many of these state laws contain private causes of action that can create significant liability for companies that are not in compliance. A single marketing campaign conducted in violation of state or federal telemarketing statutes could rapidly result in millions of dollars of liability, as these statutes penalize companies on a per-violation basis. For example, a text message sent to only 1,000 potential customers could expose a company to $1.5 million in damages. Businesses that routinely contact customers via telephone calls and text messages cannot afford to conduct these telemarketing campaigns without first ensuring their compliance with state and federal laws.
The Florida legislature amended the Florida Do Not Call Act and the Florida Telemarketing Act in 2021, and companies who market to Florida consumers should update their internal policies to adhere to these statutory amendments. The Florida Do Not Call Act contains certain identification requirements for telephonic sales calls (which is defined broadly and includes text messages), and callers are prohibited from contacting telephone numbers listed on the Florida Department of Agriculture and Consumer Services’ “No Sales Solicitations Calls List.” Callers must also maintain an internal do not call list, and contracts made pursuant to a telephonic sales call must meet certain requirements, like being in writing and signed by the consumer, before a credit card can be charged. Finally, the statute requires express written consent before a telemarketer can make a telephonic sales call to consumers using an automated system for the selection or dialing of numbers (a stricter approach than the TCPA, as discussed in our prior alert here).
Companies should also be aware of changes to the Florida Telemarketing Act. The amended statute prohibits calls outside of the 8:00 AM to 8:00 PM local time window or placing more than three calls to the same customer in a 24-hour period. Additionally, a caller cannot use technology that displays a different caller identification number than the number the call is originating from.
Oklahoma Governor Kevin Stitt signed into law the Telephone Solicitation Act on May 20, 2022. Like Florida, Oklahoma’s law regulates telephonic sales calls, again broadly defined to include text messages, and will prohibit the use of an automated system for the selection or dialing of phone numbers without express written consent of the consumer. The Oklahoma Telephone Solicitation Act also includes strict identification requirements for callers, and it prohibits altering the voice or concealing the identity of the caller.
Like the Florida Telemarketing Act, the Oklahoma law prohibits commercial telephone sellers from making calls before 8:00 AM or after 8:00 PM in the consumer’s local time zone and from making more than three commercial telephonic sales calls in a 24-hour period. The provisions of the Oklahoma Telephone Solicitation Act will go into effect on November 1, 2022. Unlike many of the other state telemarketing laws, the Oklahoma statute contains many broad exemptions, and companies should contact legal counsel to determine if an exemption applies to the company’s activities.
On June 9, 2022, the state of Washington amended its Commercial Telephone Solicitation Act. As with the other statutes referenced above, callers contacting Washington telephone numbers must meet strict identification requirements, only place calls during permitted hours, and maintain an internal do not call list. However, the Washington statute includes several unique provisions, including that the identification of the caller must be made within the first 30 seconds of the call, the caller must end the call within 10 seconds after the called party indicates that he or she wants to end the call, and if a consumer requests to be on the do-not-call list, the caller must inform the consumer that the calls associated with that consumer will stop for a period of at least one year.
Any companies that market to consumers through telephone calls or text messages should carefully examine the requirements of federal and state telecommunication marketing statutes, particularly if they use an automated system for the selection or dialing of telephone numbers. Even if companies do not operate in the states above, they can still incur liability by contacting telephone numbers with area codes from these states. The penalties for violating these statutes range from enforcement actions by state attorneys general to private causes of action seeking up to $1,500 per illicit communication.
The attorneys at Lewis Rice have extensive experience in ensuring that companies are compliant with state and federal telemarketing laws, as well as defending lawsuits alleging violations of these laws. If you need assistance with your compliance with federal and state telemarketing statutes, please contact one of the authors of this alert.