Oklahoma Governor signs bill limiting use of automated dialing systems

On Could 20, Oklahoma Governor Kevin Stitt signed into legislation Home Invoice No. 3168 which imposes new limits on using automated dialing techniques.  The brand new legislation, titled the “Phone Solicitation Act of 2022” (Act), takes impact on November 1, 2022.

The Act prohibits using an “automated system” to make a “industrial telephonic gross sales name” with out the “prior categorical written consent” of the “known as celebration.”  Like Florida’s mini-version of the federal Phone Shopper Safety Act (TCPA) that grew to become efficient final July, the Act applies to industrial telephonic gross sales calls that contain “an automatic system for the choice or dialing of phone numbers or the taking part in of a recorded message when a connection is accomplished to a quantity known as.”  Thus, the techniques that may qualify as an “automated system” for functions of the Act should not restricted to tools that will qualify as an automated phone dialing system (ATDS) beneath the TCPA.  The TCPA defines an ATDS as “tools which has the capability (A) to retailer or produce phone numbers to be known as, utilizing a random or sequential quantity generator; and (B) to dial such numbers.”  In Fb v. Duguid, the U.S. Supreme Courtroom held that automated dialing expertise solely qualifies as an ATDS if it has the capability to retailer numbers “utilizing a random or sequential quantity generator” or produce numbers “utilizing a random or sequential quantity generator.”

The Act defines the “known as celebration” as “an individual who’s the common person of the phone quantity that receives a industrial telephonic gross sales name.”  In contrast to the Florida legislation which limits the time period “telephonic gross sales name” to calls associated to consumer-purpose transactions, the Act doesn’t outline the time period “industrial telephonic gross sales name.”  Thus, except an exemption applies, the Act would cowl calls associated to non-consumer goal transactions.  Among the many Act’s exemptions is one for calls involving a “business-to-business sale” the place:

• The industrial phone vendor has been lawfully working constantly for a minimum of three years beneath the identical enterprise identify and has a minimum of 50% of its greenback quantity consisting of repeat gross sales to present companies;
• The purchaser enterprise intends to resell or provide for functions of commercial or a promotional merchandise the property or items bought; or
• The purchaser enterprise intends to make use of the property or items bought in a recycling, reuse, remanufacturing, or manufacturing course of.

The Act’s different exemptions embody exemptions for:

• A supervised monetary establishment or its mum or dad, subsidiary, or affiliate working inside the scope of its supervised exercise.  A “supervised monetary establishment” is outlined as a industrial financial institution, belief firm, financial savings and mortgage affiliation, client finance lender, industrial finance lender, or insurer that’s topic to supervision by a federal or state official or company;
• An individual soliciting enterprise from potential shoppers who’ve an present enterprise relationship with or who’ve beforehand bought from the enterprise enterprise for which the solicitor is looking if the solicitor is working beneath the identical enterprise enterprise; and
• An individual who has been working a retail enterprise institution for a minimum of one yr beneath the identical identify as that utilized in reference to telemarketing and the next circumstances happen on a seamless foundation: (a) both merchandise are displayed or supplied on the market or companies are supplied on the market and supplied on the enterprise institution, and (b) a majority of the vendor’s enterprise includes the customer acquiring such services or products on the vendor’s location.

The Act tracks the Florida legislation in numerous extra methods together with:

• Anybody who makes a industrial telephonic gross sales name should transmit the originating phone quantity and, when made obtainable by the phone solicitor’s service, the identify of the phone solicitor to any caller identification service utilized by a recipient of a industrial telephonic gross sales name.  As a substitution for such identify and phone quantity, it’s permissible to offer the identify of the vendor on behalf of which a name is positioned and the vendor’s customer support phone quantity, which is answered throughout common enterprise hours.  If a phone quantity is made obtainable by means of a caller identification service because of a industrial telephonic gross sales name, the solicitor should be sure that the phone quantity is able to receiving phone calls and should join the unique name recipient, upon calling such quantity, to the phone solicitor or to the vendor on behalf of which a name was positioned.
• A rebuttable presumption is created that any name made to a quantity with an Oklahoma space code is made to an Oklahoma residence or to an individual in Oklahoma on the time of the decision.  (This may recommend that the legislation is simply meant to cowl calls to Oklahoma residents.)
• The prohibition on utilizing automated techniques isn’t restricted to calls to mobile telephones.
• To acquire a client’s “prior categorical written consent” to obtain calls made utilizing an automatic system, a caller should present a specified disclosure and fulfill different necessities.
• Calls are prohibited earlier than 8 a.m. or after 8 p.m. (within the known as individual’s time zone).
• Not more than three calls will be comprised of any quantity to an individual over a 24-hour interval on the identical material or difficulty.
• Calls are prohibited that use expertise that alters the caller’s voice to hide the caller’s true id.

The Act creates a non-public proper of motion for violations and a known as celebration can recuperate the larger of precise damages or $500, which will be trebled for willful or figuring out violations.