In the wake of the United States Supreme Court's decision in Facebook, Inc. v. Duguid, several states began enacting their own "mini" Telephone Consumer Protection Act ("TCPA") statutes. To date, those states include Florida, Oklahoma, and Washington, with states such as Georgia, Massachusetts, and Michigan close behind.
On June 29, 2021, Florida signed CS/SB 1120 into law, amending the Florida Telemarketing Act and Florida Do Not Call Act, respectively, to create the Florida equivalent of the TCPA. Effective July 1, 2021, it was the first state to officially have its own "mini TCPA." Since then, Oklahoma and Washington have followed suit, and while all three closely resemble each other and the TCPA, there are some notable differences. As noted, it is anticipated that other jurisdictions will continue to introduce state TCPA equivalents in the near future.
Some State TCPA Law Similarities
- All three allow for a limited private right of action.
- All three prohibit calls before 8:00am or after 8:00pm, which is more restrictive than the federal law, which prohibits calls after 9:00pm.
- All three contain provisions prohibiting callers from blocking or spoofing their originating telephone numbers.
- All three contain a rebuttable presumption that any solicitation calls made to in-state area codes are made to residents of that state or persons in said state at the time of the call.
Some Key Differences
- Only with respect to Washington, the caller must identify him/herself within the first 30 seconds of the call. Additionally, if a called party requests not to be called again, the caller must end the call within 10 seconds of being asked not to call again, honor the request, and inform the called party that it will stop calling for a period of not less than one year.
- In Florida and Oklahoma, fines amount to $500 per violation, and up to $1,500 for violations found to be willful or knowing. In Washington, fines are set at $1,000 per violation.
- Oklahoma specifically exempts "[a] person soliciting business from prospective consumers who have an existing business relationship with or 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 Florida and Oklahoma statutes apply to unsolicited commercial telephonic sales calls that involve the use of an "automated system," while failing to define the term "automated system." The Washington statute applies to unsolicited commercial telephone sales calls involving the use of an "automatic dialing and announcing device."
- The Florida and Oklahoma statutes limit the number of calls and texts that consumers can receive to no more than three (3) on a given topic in a 24-hour period.
Importance of Compliance
Now that these state telemarketing laws are in effect, it is equally as important to understand the TCPA as it is to understand the state equivalents in order to avoid lawsuits on both a state and federal level. The best way to ensure that you do not find yourself as a defendant in a TCPA or state equivalent lawsuit is to hire seasoned telemarketing lawyers who can ensure that your policies and practices are compliant with applicable federal and state regulations. The attorneys at Klein Moynihan Turco continue to stay up to date on the latest developments in the telemarketing space, leveraging our years of telemarketing law experience to protect our clients' business interests.
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