On May 20, Oklahoma Governor Kevin Stitt signed into law House Bill No. 3168 which imposes new limits on the use of automated dialing systems. The new law, titled the “Telephone Solicitation Act of 2022” (Act), takes effect on November 1, 2022.
The Act prohibits the use of an “automated system” to make a “commercial 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 Act applies to commercial 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 Act 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 Act defines the “called party” as “a person who is the regular user of the telephone number that receives a commercial telephonic sales call.” Unlike the Florida law which limits the term “telephonic sales call” to calls related to consumer-purpose transactions, the Act does not define the term “commercial telephonic sales call.” Thus, unless an exemption applies, the Act would cover calls related to non-consumer purpose transactions. Among the Act’s exemptions is one for calls involving a “business-to-business sale” where:
- The commercial telephone seller has been lawfully operating continuously for at least three years under the same business name and has at least 50% of its dollar volume consisting of repeat sales to existing businesses;
- The purchaser business intends to resell or offer for purposes of advertisement or a promotional item the property or goods purchased; or
- The purchaser business intends to use the property or goods purchased in a recycling, reuse, remanufacturing, or manufacturing process.
The Act’s other exemptions 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 loan association, consumer finance lender, commercial finance lender, or insurer that is subject to supervision by a federal or state official or agency;
- A person soliciting business from prospective consumers who have an existing business relationship with or who have previously purchased from the business enterprise for which the solicitor is calling if the solicitor is operating under the same business enterprise; and
- A person who has been operating a retail business establishment for at least one year under the same name as that used in connection with telemarketing and the following conditions occur on a continuing basis: (a) either products are displayed or offered for sale or services are offered for sale and provided at the business establishment, and (b) a majority of the seller’s business involves the buyer obtaining such products or services at the seller’s location.
The Act tracks the Florida law in a number of additional ways including:
- Anyone who makes a commercial telephonic sales call must transmit the originating telephone number and, when made available by the telephone solicitor’s carrier, the name of the telephone solicitor to any caller identification service used by a recipient of a commercial telephonic sales call. As a substitution for such name and telephone number, it is permissible to provide the name of the seller on behalf of which a call is placed and the seller’s customer service telephone number, which is answered during regular business hours. If a telephone number is made available through a caller identification service as a result of a commercial telephonic sales call, the solicitor must ensure that the telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a call was placed.
- 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.
The Act creates 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.