As readers of this blog know, several states recently amended (or attempted to amend) their telemarketing laws, especially as they relate to regulating autodialers. While they don’t affect autodialing, telemarketers should take notice of the amendments to Washington state’s telemarketing statutes (available here), which go into effect June 9. And both houses of the New York General Assembly have passed a bill amending its Do Not Call Law (although it has not yet been signed by the governor).
About a week ago, Oklahoma passed its Telephone Solicitation Act of 2022, which goes into effect at the beginning of November. The Oklahoma law is patterned after the Florida Telephone Solicitation Act (FTSA), which was amended in July 2021 to allow for a private right of action. After the July 2021 FTSA amendments went into effect, hundreds of class actions were filed alleging violations of Florida’s law, prompting the Florida legislature to volley about several additional proposed amendments earlier this year. However, in March 2022, at the end of the legislative session, the various proposed FTSA amendments were “indefinitely postponed and withdrawn from consideration.” At least for the time being . . .
Back to Washington and New York. There are several changes to those states’ laws that are of importance to telemarketers. Washington’s amendments include, among other things:
- Expanding the definitional scope of what constitutes a “telephone solicitation” to include telephone calls to a “person” rather than a “residential telephone customer,” as was the case with the previous definition. Notably, the law still excludes from the definition of “telephone solicitation” telemarketing calls where an established business relationship (inquiry- or transaction-based) exists between the seller and consumer. But the transaction-based established business relationship exception lasts for only twelve months from the date of last purchase.
- Requiring that the caller identify himself or herself, the company on whose behalf they are calling, and the purpose of the call within the first thirty seconds of the call.
- Mandating that the telemarketer end the call within ten seconds after the recipient requests for the call to end.
- Providing several procedural requirements for do not call requests, namely, informing the consumer that his or her contact information will be removed from the seller’s telephone lists for at least one year; ending the call within ten seconds of the do not call request; and suppressing future telemarketing calls to “any telephone number associated with that party” for at least one year. As a practical matter, it is unclear how a telemarketer will be able to identify any and all telephone numbers “associated” with a consumer unless those are specifically given to it by the consumer. But I’m sure the class action plaintiffs’ bar will have a theory.
- Restricting the placement of telemarketing calls to between 8:00 am and 8:00 pm (at the recipient’s local time).
For its part, New York has amended its Do Not Call Law to require that telemarketers disclose at the outset of a telemarketing call the telemarketer’s name and the identity of the company on whose behalf the call is being made (if other than the telemarketer itself) and that the recipient has the option to be added automatically to the seller’s internal do not call list.
These two disclosures must be given before any others. The New York law also has been revised to require the telemarketer to advise the consumer that the call is being recorded, if at all; the purpose of the call; and the identity of the goods or services for which a fee will be charged. The latter disclosures must also be made at the outset of the call, but only after the identification and do not call option disclosures. The New York Do Not Call Law amendments will go into effect 90 days after the governor signs them into law.