On November 1, 2022, Oklahoma's Telephone Solicitation Act ("OTSA") took effect. Following a trend set by Florida, Oklahoma decided to enact its own rules to regulate intrastate telemarketing communications. Oklahoma's regulations are the latest to take effect in a line of Mini-TCPA laws. These regulations have been coined Mini-TCPAs because they are the state equivalents of the TCPA. The TCPA, or Telephone Consumer Protection Act, is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. Over the years, The TCPA has been subject to wide-ranging interpretation across various federal circuit courts. States saw the need to design and enact Mini-TCPAs in order to ensure more consistent adjudication of claims within their borders. As detailed below, businesses should be aware of significant differences that exist between the TCPA and Oklahoma's new telemarketing law.
What Are Some of the Key Provisions of Oklahoma's New Telemarketing Law?
The OTSA prohibits telemarketing calls made "using an automated system for the selection or dialing of telephone numbers" in the absence of prior express written consent. Please note that this is a significant expansion of the TCPA's prohibition on the use of autodialers. The Supreme Court's decision in Facebook, Inc. v. Duguid, explained that autodialers are comprised of equipment which has the capacity either to store, or to produce, telephone numbers using random or sequential number generators. Just like the Florida Telephone Solicitation Act ("FTSA"), Oklahoma's new telemarketing law does not clearly define what an "automated system" is. In fact, the specific usage of the terms "selection" and "dialing" in the OTSA creates the potential for enormous telemarketing liability if Oklahoma courts decide to broadly interpret the statute. As we have seen in telemarketing lawsuits brought under the FTSA, the definition and alleged use of an automated system will be heavily litigated.
Oklahoma's new telemarketing law also mirrors the FTSA with respect to the issue of standing. The OTSA creates a rebuttable presumption that calls or text messages made to a number with an Oklahoma area code are made to an Oklahoma resident or person physically present in the State at the time of receipt. This presumption opens the door to additional headache and expenditure of resources by businesses fighting class certification.
Oklahoma's new telemarketing law also limits the number of times a telemarketer can contact a consumer within a specific time period. Under the OTSA, telemarketers cannot contact a consumer more than three times within a 24-hour period. This is a strict limitation on any manner of contact, whether it be by telephone call or text message. In addition, these telemarketing communications must be made between the hours of 8:00 a.m. and 8:00 p.m. local time.
One area where the OTSA differs significantly from both the FTSA and the TCPA is the breadth of its business relationship exemption. All three laws exempt, to some extent, certain communications where the telemarketer has an existing business relationship with the consumer. However, Oklahoma's legislature has included as existing consumers those "who have previously purchased from the business enterprise for which the solicitor is calling if the solicitor is operating under the same business enterprise." The FTSA does not define "business relationship." For Do-Not-Call Rule purposes only (not TCPA autodialer use purposes), federal law defines an established business relationship as a relationship "based on a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call." Oklahoma's broadening of this exemption is a significant change in the telemarketing space. More importantly, it is a change that has the potential to greatly benefit businesses. If a business can link a prior sale to a complainant's telephone number, irrespective of timeframe, it can presumably put some unsolicited telemarketing claims to bed.
Hire Experienced Telemarketing Attorneys to Comply with Oklahoma's New Law
Similar to the TCPA and FTSA, the OTSA provides a private right of action for consumers with penalties ranging from $500 to $1,500 per call or text message. Businesses should be proactive in ensuring compliance with the new law. It remains to be seen how interpretation of the OTSA will play out in Oklahoma's courts. The attorneys at Klein Moynihan Turco will be closely monitoring lawsuits filed under the new law as they hit the dockets.
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