The Telephone Consumer Protection Act ("TCPA") has established the rules of the road on a federal level for telemarketers since its passage in 1991. In 2021, the industry saw a significant shift in state laws governing the industry. Florida acted first and passed the Florida Telephone Solicitation Act ("FTSA"), which included several new, broad telemarketing restrictions. Now, Oklahoma has followed suit. The Oklahoma Telephone Solicitation Act (often called the Oklahoma mini-TCPA) is, in many ways, a carbon copy of its Florida counterpart.
What are the most important provisions contained in the Oklahoma mini-TCPA?
Like the FTSA, the Oklahoma mini-TCPA significantly expands telemarketing restrictions for calls made to Oklahoma State residents. As with any telemarketing law, telemarketers must, on a basic level, have prior express written consent prior to contacting consumers. In addition, telemarketers should pay special attention to four provisions of the Oklahoma law in particular.
First, the Oklahoma law may expand the definition of autodialer. Readers will remember that last year's landmark Supreme Court decision in Facebook, Inc. v. Duguid limited the TCPA's autodialer definition to only that equipment which produces numbers using a random or sequential number generator. The Oklahoma mini-TCPA does not directly define the term. Instead, like the FTSA, it simply refers to an "automated system for the selection or dialing of phone numbers." Whether that description is a definition and whether it is more expansive than the TCPA's definition are both untested issues as of now. If what is considered an autodialer is broadly interpreted under the Oklahoma mini-TCPA, then almost any dialing equipment would meet that test unless a person dials numbers manually.
Second, the Oklahoma law limits the number of calls or text messages that a telemarketer can send to a consumer per day. Specifically, the law prohibits a telemarketer from contacting a consumer more than three times in a 24-hour period about the same subject matter or issue. As such, telemarketers must now either:
- keep close track of how many calls/texts a single phone number gets in a day and on what topics; or
- Institute software and database rules that do not permit contacting a consumer more than three times in a day about the same topic.
Complicating matters, how broadly to define the term "same subject matter or issue" is also unclear. Accordingly, telemarketers should interpret the term broadly unless and until the courts or the legislature say(s) otherwise.
Third, the law limits the time window that telemarketers may contact consumers to 8am to 8pm local time. Most notably, in many other states, telemarketers may contact consumers until 9pm local time. The Oklahoma mini-TCPA shortens that time window for any Oklahoma State residents.
Fourth, the Oklahoma law, like its FTSA predecessor, includes a rebuttable presumption that calls or text messages made to a number with an Oklahoma area code are made to Oklahoma residents. Just as with the number-of-calls limit, telemarketers will need to implement new telemarketing policies that ensure compliance with the Oklahoma law for any contact to any phone number with an Oklahoma area code or any phone number associated with an Oklahoma State address.
Why does the Oklahoma mini-TCPA matter for your business?
While the Oklahoma law may not be the seismic shift that the FTSA was, it still requires businesses to seriously reevaluate their telemarketing practices. Among other things, businesses should:
- Amend vendor agreements to ensure that any leads sold or purchased comply with the Oklahoma mini-TCPA;
- Add or amend their agreements to ensure that any call center partners strictly follow the Oklahoma law's requirements and strengthen indemnity requirements if the call centers violate the law;
- Update their telemarketing policies and conduct additional training for staff to teach staff how to comply with the Oklahoma law (and all other applicable telemarketing laws); and
- Hire an outside law firm or company to perform a "telemarketing audit" to find any shortfalls in compliance (performing a semi-annual or annual audit is best practice).
As with the TCPA and FTSA, the Oklahoma mini-TCPA contains a private right of action for consumers with penalties ranging from $500 to $1,500 per call or text message. Note that businesses could see actions that include both Oklahoma state law and TCPA violations, with class actions potentially seeking double damages for Oklahoma State residents. Those stakes should cause any telemarketer to take special care when complying with the Oklahoma mini-TCPA.
Hire experienced telemarketing attorneys.
Experienced telemarketing attorneys can help your business upgrade your telemarketing practices and procedures to comply with state and federal laws. The attorneys at Klein Moynihan Turco have years of experience advising companies across the telemarketing industry and can help protect your business from potential telemarketing violations.
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