October 3, 2022

Volume XII, Number 276


October 03, 2022

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More States Adding Tougher Telephone Consumer Protection Act Statutes

Two more states have followed Florida’s lead in adopting laws restricting telephone solicitations. Washington State’s new law went into effect on June 9, 2022. Oklahoma’s Telephone Solicitation Act of 2022 becomes effective November 1, 2022. This means, that businesses that make telephone sales calls now must navigate not only the federal statute, but various state laws, some of which are more stringent than their federal counterpart. 

Like Florida, both Oklahoma and Washington restrict making calls – even with the required consent – before 8 A.M. or after 8 P.M. local time and both allow for a private right of action.

Washington RCW 19.158, et. seq.​

Washington State’s law defines a telephone solicitation as the initiation of a telephone call for the purpose of encouraging the purchase of property, goods, services, or donations. There is no exception for calls made to schedule a time for an in-person sales pitch. If a called party “states or indicates” that they do not wish to be called, the caller must end the call within 10 seconds and is prohibited from calling that party again for a period of 12 months. The caller is also prohibited from selling the contact information to a third party.

Washington has carved out some exceptions to the statute’s coverage for calls made in response to a request or inquiry by the called party (specifically including calls regarding an item that has been purchased by the called party from the company or organization during a period not longer than twelve months prior to the telephone contact;  calls made by a not-for-profit organization to its own list of bona fide or active members of the organization; calls limited to polling or soliciting the expression of ideas, opinions, or votes; and business-to-business contacts. The statute also specifies that each individual real estate agent or insurance agent who maintains a separate list from other individual real estate or insurance agents shall be treated as a company or organization for purposes of the statute.

A private right of action is allowed in Washington for “repeated violations” at $100 per violation. The law also provides for attorney’s fees and costs which will likely incentivize TCPA Plaintiffs to make claims under both the federal and state statute where applicable. Unlike the Telephone Consumer Protection Act, Washington’s law does not contain a willful and knowing damages component.

Oklahoma – OSC Title 15, Chapter 20, Section 775A.1

Oklahoma’s Telephone Solicitation Act of 2022 more closely mimics the Florida statute and bans commercial telephonic sales if the call “involves an automated system for the selection OR dialing of telephone numbers or the playing of a recorded message,” without prior express written consent of the called party. This is a broader definition of an auto dialer than the Supreme Court’s definition in the landmark Facebook decisionOklahoma limits callers no more than 3 calls in a 24-hour period to any caller – even with consent. 

Like Florida’s mini-TCPA, Oklahoma’s law contains a rebuttable presumption that a call to an Oklahoma area code is a call to an Oklahoma resident or a person within the state at the time of the call. Accordingly, businesses should pay close attention to the area codes they dial.

Like its federal counterpart, Oklahoma’s law provides for a private right of action with recovery of actual damages or $500 per violation, which is trebled to $1,500 for willful violations.

On a positive note, Oklahoma provides for 28 exemptions, including calls to consumers with whom the business has an existing business relationship (EBR) and religious, charitable, political, or educational businesses. Other exempt businesses include investors, newspapers, licensed financial institutions, and insurance brokers, to name a few.

© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XII, Number 199

About this Author

Karen Hockstad, Dinsmore shohl, business attorney, tax lawyer

With extensive experience representing a wide variety of businesses and entrepreneurs, Karen is adept at counseling clients through a variety of transactional and tax matters. She also has experience in guiding her clients through litigation, having represented clients in cases throughout the country. Her unique background allows her to see and help avoid potential litigation issues in business transactions. Her business and tax knowledge is an asset in helping her commercial litigation clients. Karen is a member of the Corporate and Litigation Departments.