August 12, 2022

Volume XII, Number 224

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Washington Becomes Latest State to Tighten Restrictions on Telemarketing

While claims under the Telephone Consumer Protection Act have become more difficult for plaintiffs to assert successfully following the U.S. Supreme Court’s decision in Facebook v. Duguid,1 several states, such as Florida, have taken the initiative to enhance their own telemarketing restrictions. Washington has become the latest state to join that trend. House Bill (H.B.) 1497,2 which goes into effect on 9 June 2022, revises portions of the state’s existing telemarketing laws to, among other things, broaden the scope of how the law defines “telephone solicitation” and the reach of a do-not-call request, impose new obligations on callers requesting a donation or gift, and tighten the requirements for callers to identify themselves.

H.B. 1497 revises the definition of “telephone solicitation.” Under the existing law, “telephone solicitation” covers unsolicited telephone calls to a “residential telephone customer.”3 H.B. 1497 expands the definition, however, to cover unsolicited calls to “a person,” not just a residential telephone customer.4 This likely would include calls to cell phones, as well as individuals who answer a call but might not otherwise be an account holder for the phone number.

H.B. 1497 also enhances the reach of a do-not-call request. While the existing law prohibits callers, upon receiving a do-not-call request, from calling that number for a period of one year,5 the revised law will prohibit any such calls to “any telephone number associated with that party” who made the do-not-call request for a period of one year.6 The statute does not define what it means for a telephone number to be “associated with” a person. For example, if someone runs a sole proprietorship business under a fictitious name and has a phone number in the name of the business, it is not clear if that phone number would be “associated with” the individual. In any event, businesses engaged in telephone solicitation in Washington will need to closely monitor their records to identify whether more than one phone number is plausibly “associated with” a single person.

In addition to expanding the scope of the state’s telemarketing laws, H.B. 1497 also imposes a new obligation on telephone solicitors requesting a donation or a gift to affirmatively ask the called party if he or she “want[s] to continue the call, end the call, or be removed from the solicitor’s telephone lists.”7 Further, H.B. 1497 amends the state’s unfair business practices law to require all telephone solicitors to identify themselves, the companies on whose behalf they are calling, and the purpose of the call within the first 30 seconds of the call,8 which cuts the existing law’s one-minute timeframe in half.9

These revisions to the existing law in Washington may make fertile ground for claims by opening the door to new potential plaintiffs and additional avenues to state claims, such as calls made to phone numbers “associated with” a person who asked not to be called. Failing to comply with any of these new requirements may expose companies engaged in telephone solicitation to civil damages of at least US$100 per violation, plus attorneys’ fees and costs.10 As we have seen in Florida, businesses can expect that litigation under the revised Washington statute will increase, and therefore should take necessary steps to ensure that procedures are in place to comply with these new requirements if they are engaged in telemarketing within that state.


FOOTNOTES

[1] Facebook v. Duguid, 141 S.Ct. 1163 (2021).

[2] https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/House/1497-S.SL.pdf.

[3] RCW 80.36.390(1).

[4] H.B. 1497, § 1(1).

[5] RCW 80.36.390(3)(a).

[6] H.B. 1497, § 6(c).

[7] H.B. 1497, § 1(4).

[8] H.B. 1497, § 2(4), § 3(1).

[9] RCW 19.158.110(1).

[10] H.B. 1497, § 1(1).

Copyright 2022 K & L GatesNational Law Review, Volume XII, Number 144
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About this Author

Joseph C. Wylie II, KL Gates Law Firm, Commercial Litigation Attorney
Partner

Mr. Wylie’s practice focuses on complex class-action defense and complex commercial litigation with a particular emphasis on consumer and securities matters. He represents clients in defending against a wide range of individual and class-action consumer claims, including consumer fraud actions and claims brought under the Telephone Consumer Protection Act. He also represents investment advisers and mutual fund families in connection with government investigations and investor claims, including claims made under the Investment Company Act. Mr. Wylie also represents...

312-807-4439
Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney
Partner

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial...

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Jonathan R. Vaitl Litigation Attorney K&L Gates Harrisburg, PA
Associate

Jonathan Vaitl is an associate at the firm’s Harrisburg office. He is a member of the litigation practice area. 

Representative Experience 

  • Represented client on pro bono basis in preparing and filing immigration documents to secure special visa for victims of criminal activity
  • Conducted research and analysis regarding privacy policies in various states in relation to the commercial use of unmanned aircraft
  • Assisted with development of Safe Harbor Agreement related to the Endangered Species Act for clients in timber industry
  • Conducted...
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