Oklahoma Governor Signs Bill Limiting Use of Automated Dialing Systems
On May 20, Oklahoma Governor Kevin Stitt signed the law Bill No. 3168 which imposes new limits on the use of automatic numbering systems. The new law, titled “Telephone Solicitation Act of 2022” (Act), comes into force on November 1, 2022.
The law prohibits the use of an “automated system” to make a “commercial telephone 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 went into effect last July, the law applies to commercial telephone sales calls that involve “an automated for the selection or dialing of telephone numbers or the playback of a recorded message when a connection is established with a called number. Thus, the systems which may be qualified as an “automated system” for the purposes of the Act are not limited equipment that would qualify as an Automatic Telephone Dialing System (ATDS) under the TCPA.The TCPA defines an ATDS as “equipment that has the capability (A) of storing or producing telephone numbers to be called, using a random or sequential number generator; and (B) dial those numbers. Facebook v Duguidthe U.S. Supreme Court has ruled that automatic dialing technology is considered an ATDS only if it has the ability to store numbers “using a random or sequential number generator” or produce numbers “using a random or sequential number generator”.
The law defines “called party” as “a person who is the regular user of the telephone number who receives a commercial telephone sales call.” Unlike Florida law which limits the term “telephone sales call” to calls related to consumer transactions, the law does not define the term “commercial telephone sales call”. Thus, unless an exemption applies, the Act would cover calls related to transactions for non-consumer purposes. Among the Act’s exemptions is one for calls involving a “business-to-business sale” where:
- The commercial telemarketer has been legally continuously in business for at least three years under the same business name and has at least 50% of its dollar volume made up of repeat sales to existing businesses;
- The purchasing company intends to resell or offer for advertising or promotional purposes the good or goods purchased; or
- The purchasing company intends to use the purchased good or goods in a recycling, reuse, refurbishment or manufacturing process.
Other exemptions from the Act include exemptions for:
- A supervised financial institution or its parent, subsidiary or affiliate operating within the scope of its supervised activity. A “supervised financial institution” is defined as a commercial bank, trust company, savings and credit association, consumer financial lender, commercial financial lender or insurer subject to the supervision of an official or a federal or state agency;
- A person soliciting business from potential consumers who have an existing business relationship with or have previously purchased from the business enterprise for which the attorney is calling if the attorney is operating under the same business enterprise; and
- A person who has been operating a retail establishment for at least one year under the same name as that used in the context of telemarketing and who presents himself continuously under the following conditions: (a) either products are displayed or offered for sale , or services are offered for sale and provided at the commercial establishment, and (b) the majority of Seller’s business involves Buyer obtaining such goods or services at Seller’s location.
The law follows Florida law in several additional ways, including:
- Anyone making a commercial telephone sales call must pass the originating telephone number and, when made available by the telephone solicitor’s operator, the telephone solicitor’s name to any identification service of the caller used by a recipient of a commercial telephone sales call. In lieu of such name and telephone number, it is permissible to provide the name of the seller on whose behalf a call is made and the seller’s customer service telephone number, which is answered during normal business hours. If a telephone number is made available through a caller ID service as a result of a commercial telephone sales call, the attorney should ensure that the telephone number is capable to receive telephone calls and must connect the original recipient of the call, when calling that number, to the telephone attorney or salesperson on whose behalf a call was made.
- A rebuttable presumption is created that any call made to a number with an Oklahoma area code is made to an Oklahoma residence or a person in Oklahoma at the time of the call. (That would suggest the law is only intended to cover calls to Oklahoma residents.)
- The ban on using automated systems is not limited to calls to cell phones.
- To obtain a consumer’s “prior express written consent” to receive calls made using an automated system, a caller must provide specific disclosure and meet other requirements.
- Calls are barred before 8:00 a.m. or after 8:00 p.m. (in the called party’s time zone).
- No more than three calls can be made from any number to one person in a 24 hour period on the same topic or issue.
- Calls that use technology that alters the caller’s voice to conceal their true identity are prohibited.
The law creates a private right of action for breach and a called party can recover the greater of actual damages or $500, which can be tripled for willful or knowing breaches.