On November 1, 2022, Oklahoma's Telephone Solicitation Act ("OTSA") took effect. State telemarketing laws, such as the OTSA, have been coined Mini-TCPAs because they are, in large part, 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. Of particular concern for federal and state legislators is the use of automated telephone dialing systems to initiate telemarketing calls to consumers. Following the United States Supreme Court's decision in Facebook v. Duguid, however, telemarketers may now be more susceptible to Oklahoma automated system claims than they are to TCPA-specific automated telephone dialing system ("ATDS") claims.
What Are Some of the Key Provisions of the OTSA?
The most notable OTSA provision is the prohibition against "using an automated system for the selection or dialing of telephone numbers " absent consumer consent. In addition, telemarketers should also be aware that:
- The OTSA creates a rebuttable presumption that calls or text messages made to a number with an Oklahoma area code are made to Oklahoma residents or people physically present in the State at the time of receipt.
- Telemarketers cannot contact a consumer more than three times within a 24-hour period "on the same subject matter or issue." This is a strict limitation on any manner of contact, whether it be by telephone call or text message. In addition, telemarketing communications may only be delivered between the hours of 8:00 a.m. and 8:00 p.m. local time.
How Does Oklahoma's Automated System Provision Differ From an ATDS Under the TCPA?
In its entirety, Oklahoma's instructive automated system provision reads: "[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 . . . without the prior express written consent of the called party." This is a significant expansion of the TCPA's prohibition against the use of an ATDS.
The OTSA does not adequately define what an "automated system" is. In contrast, the Supreme Court, in Facebook, Inc. v. Duguid, clarified that an ATDS is comprised of equipment that uses a "random or sequential number generator" to both "store" and "produce" telephone numbers. Furthermore, Oklahoma's automated system provision only requires that the system is utilized in the "selection" or "dialing" of telephone numbers. As such, the OTSA's usage of the all-encompassing terms "selection" and "dialing" creates even greater opportunities for Oklahoma consumers to file suit.
Hire Experienced Telemarketing Attorneys to Comply with the OTSA
It is important that telemarketers understand the significant differences between the Oklahoma automated system provision and the TCPA's ATDS definition. In addition, similar to the TCPA, the OTSA provides for a private right of action to consumers, with penalties ranging from $500 to $1,500 per call or text message. It goes without saying that businesses should be proactive in ensuring compliance with both statutes, while carefully observing their nuanced differences.
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