A small handful of states have enacted their take on the Federal Telephone Consumer Protection Act ("TCPA"), prohibiting the use of automated telephone sales calls without prior express written consent. These laws are designed to protect consumers from receiving unauthorized and unwanted telemarketing calls. Oklahoma recently passed such legislation, the OTSA, which is based in large part on the Florida Telephone Solicitation Act ("FTSA"). Readers of our blog know that the FTSA imposed additional restrictions on telemarketing beyond those contained in the TCPA and created a state-based avenue for telemarketing litigation. Over the last year, FTSA lawsuits have changed the telemarketing landscape in Florida. In all likelihood, we can expect to see a similar bombardment of lawsuits alleging violations of the OTSA.
How to Comply with OTSA Telemarketing Provisions
Pursuant to the OTSA, as of November 1, 2022, "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 or the playing of a recorded message when a connection is completed to a number called without the prior express written consent of the called party [emphasis added]." It is somewhat helpful that the law defines "prior express written consent" as a written agreement that: 1) bears the signature of the called party; 2) clearly authorizes the person making or allowing the placement of a commercial telephonic sales call; 3) includes the telephone number to which the signatory authorizes a commercial telephonic sales call to be delivered; and 4) includes a clear and conspicuous disclosure. Please note that, yes, text messaging is included within the purview of the OTSA.
Telemarketing companies should be aware of the OTSA's additional restrictions. For instance, telemarketing phone calls/texts may not be placed/sent before 8 a.m. or after 8 p.m. local time in the called person's time zone. Further, companies may not place more than three commercial telephone solicitation phone calls from any number to a person over a 24-hour period on the same subject matter or issue, regardless of the phone number used to make the call. It goes without saying that these are not the only regulations that businesses must comply with when marketing via automated means. And failure to adhere to applicable state and federal laws will expose companies to potential lawsuits.
What Kinds of OTSA Lawsuits are Anticipated?
Within weeks of the FTSA's going into effect, plaintiffs began filing lawsuits.Today, a rapidly growing percentage of telemarketing litigation in Florida (one of the country's biggest markets) involves the FTSA. We expect a similar flurry of litigation to occur in Oklahoma. Please note that a plaintiff who is an aggrieved "called party" may bring an OTSA action to: 1) enjoin the violation; and 2) recover actual damages or $500.00, whichever is greater. If the court finds that the defendant willfully or knowingly violated OTSA, the court may, in its discretion, increase the award to not more than three times the amount available. As such, businesses must beware of the potential for extensive OTSA-specific litigation.
Telemarketing litigation defense requires attention to detail and intimate knowledge of various statutes. These skills are essential to achieving positive results. But only those dedicated to the sector can perform on a high level. The solution? Hire experienced telemarketing attorneys to maintain industry-best compliance practices and provide business-oriented expertise in litigation defense when needed.
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