States are continuing their focus on telemarketing, with updates and new laws in Arizona, Florida, Maryland, Mississippi, Tennessee and Washington, and a bill in Georgia waiting on a gubernatorial signature. Many of these are arguably more expansive than what federal law requires, and some have criminal penalties.
Below are highlights of what the states are up to.
- Arizona. Lawmakers enacted a new measure to add text messages to the state's existing telemarketing law. House Bill 2498 took immediate effect on April 12 with a signature from Governor Katie Hobbs. The state Attorney General is tasked with enforcement, with fines of up to $1,000 per violation.
- Florida. In 2021, Florida enacted a "mini-TCPA" known as the Florida Telephone Solicitation Act (FTSA). After two years of litigation and copycat laws in Washington and Oklahoma, the Florida state legislature amended the controversial statute. House Bill 761, passed by the Florida Legislature and signed into law by Governor Ron DeSantis on May 25, 2023, makes major changes, including narrowing the categories of equipment that are covered by the statute (while still including the transmission of a prerecorded voicemail), expanding the definition of "signature" to allow acts such as checking a box and creating a 15-day notice and cure period before a plaintiff can file suit in text message cases. Importantly, the amendments apply retroactively to any pending FTSA class action that has not been certified by its effective date, though that aspect may be challenged in the courts. The bill is in immediate effect.
- Georgia. Passed by both the Senate and the House, Senate Bill 73 amends existing telemarketing law in the state to provide a private right of action for violations, removes the terms "knowing" and "knowingly" from the current law, and reduces the potential fine for each violation from $2,000 to $1,000. In addition, and perhaps most significantly, the bill expressly allows individuals to file suit for violations on behalf of a putative class. It also added a potential defense for calling a number provided in error, but it removes the defense of not knowing a solicitation was made by a third party unless there are "established policies and procedures to effectively prevent telephone solicitations in violation of this Code section and mandated and enforced compliance with such policies and procedures."
- Maryland. In the Stop the Spam Calls Act of 2023, state lawmakers passed a law prohibiting telephone solicitations that involve "an automated system for the selection or dialing telephone numbers" or "the playing of a recorded message when connection is completed to the number called" without first obtaining prior express written consent. This definition is a dramatic expansion of what the Supreme Court held to be an autodialer in Facebook, and expressly applies to systems that automatically select numbers to be dialed. The new law—set to take effect on January 1, 2024—also places time and numerical restrictions, banning calls between the hours of 8 p.m. and 8 a.m., and limiting calls to the same number to no more than three times in a 24-hour period. Maryland state officials are authorized to enforce the law, with fines of up to $1,000 or one year's imprisonment or both; injunctive relief or civil damages may also be awarded.
- Mississippi. Set to take effect on July 1, House Bill 1225 added new definitions to the Mississippi Telephone Solicitation Act and clarified language regarding the use of the National Do Not Call Registry. It also transferred authority from the Public Service Commission to the state's Attorney General.
- Tennessee. Similar to Arizona, the state legislature passed a measure that adds text messages to the existing state law on telemarketing. Senate Bill 868 takes effect on July 1.
- Washington. The state passed a comprehensive piece of legislation establishing a private right of action for plaintiffs to seek injunctive relief and recover actual damages or $1,000 for violations as of July 4. The Robocall Scam Protection Act prohibits commercial solicitations using an "automatic dialing and announcing device," which it defines as "a system which automatically dials telephone numbers and transmits a recorded or artificial voice message once a connection is made," including if the message "goes directly to a recipient's voicemail." It also bans "assisting in the transmission" of prohibited solicitations, as well as telephone solicitations to numbers on the National Do Not Call Registry, and knowingly causing any caller ID service to transmit misleading, inaccurate or false caller identification information.
Why it matters: As more and more states enact new laws or amend existing regulations, companies need to be aware of the potential for liability not only on a federal level but also in various jurisdictions across the country. Compliance with the Telephone Consumer Protection Act alone may not be enough.
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