This week we'll take a closer look at the TCPA, Oklahoma Telephone Solicitation Act of 2022, and how Florida influenced this Oklahoma bill.
What is the TCPA?
The TCPA, or Telephone Consumer Protection Act, was signed into law in 1991 by President George H.W. Bush. This legislation was a response to a steep rise in harassing, annoying, and unregulated telemarketing calls and faxes. Yes, you read that right, faxes. The main purpose of the TCPA is to restrict solicitation via telephone (think telemarketing) and regulate the use of equipment that automates phone functions. Any business, person, or entity conducting telephone solicitations must comply with TCPA. There are a few limitations outlined in the legislation surrounding use of pre-recorded messages, automatic dialing via voice and VoIP (voice over IP) calls, and using other methods (think SMS and fax) to contact customers without the customer's explicit consent.
The TCPA defines “telephone solicitation” as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.”
A few high level requirements of the TCPA are:
- Callers may only contact residential consumers between 8:00 AM and 9:00 PM -- based off the recipient’s time zone
- Autodialed marketing calls and texts to cell phones and other devices where the recipient might be charged for the call are restricted without prior express written consent
- The caller must identify themselves. They must provide their name, the name of the company on whose behalf they are calling, and a telephone number or address which can be used to contact them again
The TCPA also created the National Do Not Call Registry. The do-not-call rules have changed over the years - originally the FCC required companies to build and maintain their own database. However, in 2003 the FTC created the National Do Not Call Registry to have a more uniform approach to implementing regulations to protect consumers from unwanted, unsolicited calls.
In 2015, the FCC released the TCPA Declaratory Ruling and Order. This order was meant to address requests from consumers and businesses to clarify how the TCPA should be interpreted and enforced by the FCC. High level components of this included items like:
- Consumers can revoke previously given consent to receive calls or SMS messages in any ‘reasonable’ way, at any time
- Telephone service providers can offer robocall blocking to consumers
- Telemarketers may not use an automatic telephone dialing system (ATDS) to call wireless phones and leave pre-recorded telemarketing messages without consent of the recipient
- Some "urgent circumstances" still allow a company to call or send SMS messages to wireless phones without prior consent (think alerts about things like urgent matters like severe weather or potential credit card fraud). The companies sending these types of communications must offer consumers an ‘opt-out’ option
The TCPA defines an automatic telephone dialing system (ATDS) as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
TCPA enforces fines for violations: $500 per violation, $1,500 per willful violation, and $43,280 per do-not-call list violation. The TCPA also has uncapped statutory damages, meaning the only limit on how large a penalty is is how many violations were committed. There is also a private right of action.
What does the Oklahoma Telephone Solicitation Act do?
The Oklahoma Telephone Solicitation Act of 2022 (OTSA), or HB3168, aims to prohibit the use of an “automated system” to make a “telephonic sales call” without the “prior express written consent” of the “called party.”
This legislation aims to take the TCPA one step further. If passed, the regulations outlined would apply to telephonic sales calls involving “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.” It also defines the “called party” as “a person who is the regular user of the telephone number that receives a telephonic sales call.”
Because of this crucial "or", this definition includes most electronic workflow tools (including to click-to-dial systems) as "autodialers". Many businesses who have contact centers or make calls for legitimate business purposes use equipment and technology that can qualify as an “automated system” to initiate their workflows and make their calls. The bill 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 bill also aims to curb down on spoofing (when a caller deliberately falsifies the information transmitted to your caller ID display to disguise their identity) stating "It shall be unlawful for any person who makes a telephonic sales call to fail to transmit the originating telephone number."
The OTSA bans certain categories of automated calls without express written consent from consumers. The legislation defines "prior express written consent" as a written agreement that:
- Bears the signature of the called party
- Clearly authorizes the person making or allowing the placement of a telephonic sales call by telephone call, text message, or voicemail transmission to deliver to the called party a telephonic sales call using an automated system for the selection or dialing of telephone numbers, the playing of a recorded message when a connection is completed to a number called, or the transmission of a pre recorded voicemail
- Includes the telephone number to which the signatory authorizes a telephonic sales call to be delivered
"Signature" is defined as including an electronic or digital signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.
This legislation also enforces the TCPA rule that callers may only contact residential consumers only between 8:00 AM and 9:00 PM based off the recipient’s time zone. Additionally, the legislation states no more than three calls can be made from any number on the same subject matter or issue to the same person over a 24-hour period.
The law is only intended to impact only Oklahoma residents, containing a rebuttable presumption (an assumption made by a court that is taken to be true unless someone comes forward to contest it and prove otherwise) stating "that a telephonic sales call made to any area code in this state is made to an Oklahoma resident or to a person in this state at the time of the call."
One major exemption in the bill is one for calls involving a “business-to-business sale”. These "sales" must satisfy certain conditions, like calls made a seller who “has been lawfully operating continuously for at least three years under the same business name and has at least fifty percent of its dollar volume consisting of repeal sales to existing businesses.” Another important exemption is for a “supervised financial institution or parent, subsidiary, or affiliate thereof operating within the scope of supervised activity.”
There is also a private right of action under the OTSA for violations with damages outlined as the greater of actual damages or $500. These damages, similar to the TCPA, can be trebled for willful or knowing violations.
If the bill passes and is signed by the governor, it will be effective come November 1, 2022.
How is Florida involved in this?
Last year, Florida passed the Florida Telephone Solicitation Act (FTSA). The Oklahoma bill tracks this bill very closely. The FTSA has been a confusing mess since it took effect July of 2021, which has alerted people in Oklahoma to how legislation written like this may not be clear in practice.
First, the FTSA prohibits placing telemarketing calls or sending marketing SMS with “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without first obtaining the recipient’s “prior express written consent.” Their "prior express written consent" definition requires the signature and phone number of the called party, clear authorization, and conspicuous disclaimers. Second, the FTSA contains the same "or" as the OTSA in their definition for automated dialer. As a reminder, the problematic "or" makes it so many systems companies use to identify phone numbers and make calls, even systems that select numbers that humans dial manually, could qualify as a violation.
The FTSA also includes a private right of action and uncapped statutory damages between $500 and $1,500 for each telemarketing call or text message which violates the autodialer provision.
The passage of this bill has resulted in in many FTSA class action filings (more than 30, in fact). The linked article includes the following recommendations for companies who use SMS and voice calls as part of their business practices:
- Ensure your terms and conditions have clear and conspicuous disclosures and opt-in instructions and requirements
- For all promotional texts, calls, and emails, obtain prior express written consent. Companies also need to keep a record of when consumers opt-in with the proper consent.
- Ensure you are putting systems in place that recognize and honor opt-out requests
- Ensure that any vendors (like third party marketing companies) are following FTSA compliance
- Consider including a class action waiver in messaging terms and conditions.
In January this year, House Bill 1095 was introduced with the intention to address the "or" in the autodialer definition. This bill aimed to modify the FTSA to more align with the TCPA’s autodialer definition. The bill died during its second reading in March of this year. But, if it had passed, the proposed amendment would prohibit sending calls or text messages with “an automated system for the selection and dialing of telephone numbers or the playing of a recorded message when the connection is completed” without first obtaining the recipient’s prior express written consent. The problematic "or" was previously where the "and" is.
It is unclear how these bills will be enforced. What is clear is that there needs to be an update to the legislative text to more accurately reflect the reality of how this type of business activity is performed. I am interested to see if more legislation like the OTSA and FTSA is proposed in the coming year and if they address the "pesky" or.
Cover Photo by Annie Spratt on Unsplash
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