On November 1, 2022, Oklahoma’s Telephone Solicitation Act (“OTSA”) went into effect. Following a trend set by Florida, Oklahoma decided to enact its own rules to regulate intrastate telemarketing communications. The Oklahoma regulations are the latest to go into effect in a line of Mini-TCPA laws. These regulations were coined Mini-TCPA because they are the state equivalents of the TCPA. The TCPA, or Telephone Consumer Protection Act, is a federal law designed to protect consumer privacy by restricting certain types of telemarketing communications. Over the years, the TCPA has been widely interpreted in various federal circuit courts. States have seen the need to design and enact mini-TCPAs to ensure more consistent resolution of claims within their borders. As detailed below, businesses should be aware of important differences between the TCPA and Oklahoma’s new telemarketing law.
What are some of the key provisions of Oklahoma’s new telemarketing law?
The OTSA prohibits telemarketing calls made “using an automated telephone number selection or dialing system” without prior express written consent. Please note that this is a significant extension of the TCPA’s ban on the use of autodialers. The Supreme Court’s decision in Facebook, Inc. v. Duguid, explained that automatic dialers consist of equipment capable of either storing or producing telephone numbers using random or sequential number generators. Like the Florida Telephone Solicitation Act (“FTSA”), Oklahoma’s new telemarketing law does not clearly define what an “automated system” is. In fact, the specific use of the terms “selection” and “composition” in the OTSA creates enormous potential for telemarketing liability if Oklahoma courts decide to interpret the law broadly. As we have seen in the telemarketing lawsuits filed under the FTSA, the definition and alleged use of an automated system will be hotly contested.
Oklahoma’s new telemarketing law also mirrors the FTSA with respect to the issue of standing. The OTSA creates a rebuttable presumption that calls or text messages to a number with an Oklahoma area code are directed to a resident of Oklahoma or a person physically present in the state at the time of receipt . This presumption opens the door to additional headaches and expenditure of resources by companies struggling with class certification.
Oklahoma’s new telemarketing law also limits the number of times a telemarketer can contact a consumer within a specific time frame. Under the OTSA, telemarketers cannot contact a consumer more than three times in a 24-hour period. This is a strict limitation of any form of contact, whether by phone call or text message. In addition, these telemarketing communications must be made between 8:00 a.m. and 8:00 p.m. local hour.
One area where the OTSA differs significantly from the FTSA and the TCPA is the scope of its business relationship exemption. All three statutes exempt, to some extent, certain communications where the telemarketer has an existing business relationship with the consumer. However, the Oklahoma legislature has included as existing consumers those “who have previously purchased from the business enterprise for which the attorney is calling if the attorney operates under the same business enterprise.” The FTSA does not define “business relationship”. For purposes of the Do-Not-Call rule only (and not for purposes of using the TCPA autodialer), federal law defines an established business relationship as one “based on voluntary two-way communication between a person or an entity and a residential subscriber with or without exchange for consideration, based on the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or based on the subscriber’s inquiry or request for products or services offered by the entity within the three months immediately preceding the date of the call. Oklahoma’s expansion of this exemption is a significant change in the telemarketing space. More importantly, this is a change that has the potential to greatly benefit businesses. If a business can tie a past sale to a complainant’s phone number, regardless of either the delay, it can presumably put to bed some unsolicited telemarketing claims.
Hire experienced telemarketing attorneys to comply with new Oklahoma law
Similar to the TCPA and FTSA, the OTSA offers consumers a private right of action with penalties ranging from $500 to $1,500 per call or text message. Businesses must be proactive to ensure compliance with the new law. It remains to be seen how the interpretation of the OTSA will play out in Oklahoma courts. Klein Moynihan Turco’s lawyers will closely monitor the lawsuits filed under the new law as they are brought to trial.
Klein Moynihan Turco maintains an extensive practice in the areas of internet and mobile marketing law, consumer data privacy law, lottery and promotions law, gaming and fantasy sports law, intellectual property and general corporate law. If we can help you, please visit https://kleinmoynihan.com or call us at (212) 246-0900.