1./.22 – Consumer Finance Monitor
Titled the “Telephone Solicitation Act of 2022,” the bill would prohibit the use of an “automated system” to make a “telephonic sales call” without the “prior express written consent” of the “called party.” … The prohibition on using automated systems is not limited to calls to cellular phones.
A bill was recently introduced in the Oklahoma legislature that would impose new limits on the use of automated dialing systems. If enacted, the bill would become effective November 1, 2022.
Titled the “Telephone Solicitation Act of 2022,” the bill would prohibit the use of an “automated system” to make a “telephonic sales call” without the “prior express written consent” of the “called party.”
Like Florida’s mini-version of the federal Telephone Consumer Protection Act (TCPA) that became effective last July, the bill would apply to telephonic sales calls that involve “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.” Thus, the systems that can qualify as an “automated system” for purposes of the bill are not limited to equipment that would qualify as an automatic telephone dialing system (ATDS) under the TCPA. The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In Facebook v. Duguid, the U.S. Supreme Court held that automatic dialing technology only qualifies as an ATDS if it has the capacity to store numbers “using a random or sequential number generator” or produce numbers “using a random or sequential number generator.”
The bill defines the “called party” as “a person who is the regular user of the telephone number that receives a telephonic sales call.” Unlike the Florida law which limits the term “telephonic sales call” to calls related to consumer-purpose transactions, the bill does not define the term “telephonic sales call.” Thus, unless an exemption applies, the bill would cover calls related to non-consumer purpose transactions. Among the bill’s exemptions is one for calls involving a “business-to-business sale” that satisfy certain conditions such as calls made a seller who “has been lawfully operating continuously for at least three (3) years under the same business name and has at least fifty percent (50%) of its dollar volume consisting of repeal sales to existing businesses.”
The bill does, however, track the Florida law in a number of additional ways including:
- A rebuttable presumption is created that any call made to a number with an Oklahoma area code is made to an Oklahoma residence or to a person in Oklahoma at the time of the call. (This would suggest that the law is only intended to cover calls to Oklahoma residents.)
- The prohibition on using automated systems is not limited to calls to cellular phones.
- To obtain a consumer’s “prior express written consent” to receive calls made using an automated system, a caller must provide a specified disclosure and satisfy other requirements.
- Calls are prohibited before 8 a.m. or after 8 p.m. (in the called person’s time zone).
- No more than three calls can be made from any number to a person over a 24-hour period on the same subject matter or issue.
- Calls are prohibited that use technology that alters the caller’s voice to conceal the caller’s true identity.
- There are numerous exemptions, including an exemption for a “supervised financial institution or parent, subsidiary, or affiliate thereof operating within the scope of supervised activity.”
- There is a private right of action for violations and a called party can recover the greater of actual damages or $500, which can be trebled for willful or knowing violations.