Given the business disruption caused by COVID-19, many businesses have praised the ease and minimal cost of using dialer and SMS platforms to reach existing and new customers for marketing and sales. However, given the restrictions on calls and texts imposed by the federal Telephone Consumer Protection Act (TCPA), companies have had to carefully align their marketing efforts with federal law.
Against this backdrop, businesses making phone calls and texting to reach their customers likely celebrated the 2021 Supreme Court ruling by Facebook, Inc. v. Duguid. In that case, the Court took a narrow view of the definition of an “automatic telephone dialing system” in the TCPA and, at the same time, narrowed the scope of conduct that would violate the law.
However, this celebration was stifled by the fact that the Supreme Court’s decision does not concern state-level laws regarding such communications. In fact, state laws can sometimes be After restrictive then the TCPA and may still result in crippling liability even if a company complies with all federal provisions of the TCPA. Currently, three states have their own “mini-TCPA” laws in effect, and several other state legislatures are considering their own laws.
In Florida, Governor DeSantis signed legislation in 2021 creating his own “mini-TCPA,” with statutory damages of $500 per violation. And unlike the TCPA, which requires the use of a “random or sequential number generator,” Florida law applies to “automated telephone number selection or dialing systems . . . .” In other words, making a “telephone sales call” to a list of phone numbers using automated equipment would be an alleged violation of Florida law, but not the TCPA. For example, a company’s dialing equipment may be TCPA compliant, but could still violate Florida law if it makes calls to Florida residents.
Similarly, the state of Washington has a books law that prohibits the transmission of unsolicited “electronic commercial text messages” to residents of Washington. This law does not specify whether the use of “automated systems” or “random or sequential number generators” is necessary, which means that the transmission of any “commercial text message” is liable to prosecution under the Washington Consumer Protection and may result in legal penalties. damages of $500 per violation.
Oklahoma also recently enacted its own “mini-TCPA” which follows Florida law and in some ways is even more restrictive, as it prevents a merchant from making more than three phone calls in a 24-hour period. , even with his consent. Like Florida law, it also provides for damages of $500 per violation. Other states should follow suit with their own telemarketing laws.
Companies must ensure that their sales and marketing outreach plans comply not only with the federal TCPA requirements, but also with the myriad of state-level “mini-TPCA” laws. Going forward, a business should:
- Review the states in which you use marketing and other telephone and text communications to customers and potential customers to determine what state laws might be implicated.
- Consider the type of auto-dial technology you use and whether it may give rise to liability under various state laws.
- Determine what “rules” are in place regarding the time and frequency with which you can contact customers and potential customers.
- Determine if the states in which you conduct telemarketing require you to register with state licensing authorities.