Posted by Chris Alarie on Thu, 04/20/2023 - 09:17
Table of Contents
- The Structure of the Mini-TCPAs
- Autodialer Provisions
- Other Provisions
- Which Calls Are Covered
State-level telemarketing laws are nothing new. In fact, many states’ laws predate the federal Do Not Call (DNC) Registry and Telephone Consumer Protection Act (TCPA). But level of risk associated with state telemarketing regulations has increased precipitously in recent years, particularly in Florida and Oklahoma.
Both states passed new laws—the Florida Telephone Solicitation Act (FTSA) in 2021 and the Oklahoma Telephone Solicitation Act (OTSA) in 2022—that greatly overhaul the existing telemarketing regulations to make them something more like a state-level mini-TCPA. Notably, these mini-TCPA’s were drafted and passed after the Supreme Court’s ruling in Facebook v. Duguid restricted the scope of autodialer complaints under the TCPA. Their main purpose seems to be to recreate the pre-Facebook status quo of autodialer regulations at the state level, but in reality they invite an even wider scope of potential litigation.
Callers that do business in these states, including out-of-state callers that may potentially call Florida or Oklahoma residents, need to be aware of these mini-TCPAs and prepared to comply with them.
The Structure of the Mini-TCPAs
Both the FTSA and OTSA follow the TCPA’s enforcement model. This includes private rights of action, uncapped statutory damages, and per-violation penalties. Like the TCPA, these penalties can be up to $500 per violation and treble damages of up to $1,500 per violation for willful violations. The OTSA’s private right of action covers all of the law’s provisions while the FTSA’s private right of action only applies to some of its provisions. But both allow a private right of action for the most important aspect of each law: the restrictions on autodialed calls made without consent.
The most significant provision of both the OTSA and FTSA, and likely their raison d'être, is their prohibitions against autodialed and prerecorded calls without prior express written consent.
The FTSA requires “all sales telephone calls, text messages, and direct-to-voicemail transmissions to have the receiving consumer’s prior express written consent if the call will be made using an automated machine to dial the recipient’s phone number, or will play a recorded message upon connection with the recipient.”
The OTSA states that “a person may not make or knowingly allow a commercial telephonic sales call to be made if such call involves 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 without the prior express written consent of the called party.”
These are designed to be similar to the TCPA’s restrictions on the use of an automatic telephone dialing system (ATDS). However, while ambiguities in how to interpret the TCPA’s ATDS definition were the source of voluminous litigation and jurisdictional inconsistencies not reconciled until the Facebook decision, neither the FTSA nor OTSA offer a definition at all for what constitutes an “automated machine” or an “automated system”.
This lack of definition has allowed plaintiffs and litigators wide latitude in terms of what sorts of dialing methods can be subject to mini-TCPA litigation. This has resulted in an unusual dichotomy in which text messaging is generally the safest communications channel under the TCPA—thanks to the Facebook decision—while being the basis of nearly all mini-TCPA litigation. In practice, it means that responsible callers in Florida and Oklahoma must keep the sorts of rigorous consent standards for text message campaigns that were in place in particularly plaintiff-friendly jurisdictions between the Marks decision and the Facebook decision.
While the autodialer restrictions have received the most attention and been the biggest source of litigation, both the FTSA and OTSA have other provisions in common. These include:
- Reducing the allowed calling times from 8:00 am to 8:00 pm in the consumer’s time zone
- A restriction against calling the same person about the same subject matter more than 3 times in any 24-hour period
The OTSA includes restrictions against the following:
- Restrictions against sales calls that block caller ID or display a different phone number than the originating number
- Sales calls that intentionally alter the voice of the caller in an attempt to disguise or conceal the identity of the caller in order to mislead or confuse the recipient
The FTSA adds the possibility of criminal penalties for violating a preexisting ban on the use of spoofed numbers. It also changes existing regulations to allow for the private right of action to be used to enforce the following rules:
- Prohibitions against contacting phone numbers on the state’s DNC list
- Licensing requirements for telephone solicitors who do business within the state
- A requirement that callers identify themselves to the consumer within the first 30 seconds of the phone call
- Keeping business records for at least two years, including the names and phone numbers of every person contacted
Which Calls Are Covered
As state laws, the OTSA and FTSA are necessarily more limited in what calls are regulated compared to a federal law such as the TCPA. The most obvious category of calls that are regulated by these laws is calls to residents of each particular state. Notably, both the OTSA and FTSA contain rebuttable presumptions that calls made to area codes associated with Oklahoma and Florida are made to residents of Oklahoma and Florida and, thus, regulated by each state’s respective law.
Most FTSA complaints have been against callers contacting Florida area codes, including callers located within Florida or out of state. Some of these complaints have even been filed in federal courts in districts outside of Florida. But at least one FTSA complaint has followed the opposite model, alleging that a Florida business violated the FTSA in calls made to a resident of Michigan.
One positive attribute of the FTSA and OTSA is that they contain more extensive exemptions than the TCPA.
The OTSA mentions 26 exemptions and the FTSA mentions 28 exemptions. Among the most notable exemptions in both laws are the following:
- Sales calls of an infrequent or one-time nature
- Calls for noncommercial purposes
- Solicitors who do not make the sales presentation during the call, but rather arrange a face-to-face meeting
- Financial institutions or licensed securities, commodities, investment, or insurance brokers
- Newspaper or cable solicitations, or book, video, or record club plans
- Qualified business-to-business sales calls
The most important practice that callers can make to avoid litigation under the FTSA and OTSA is maintain rigorous consent standards for any campaigns that may contact residents of Florida or Oklahoma, particularly text message campaigns. Maintaining compliance with the laws’ other provisions is important, of course. But the majority of litigation under these laws so far has focused on class actions alleging violations of the broad autodialer restrictions, usually targeting text message campaigns.