TLDR: Drips has your back!
The Oklahoma legislature has passed HB 3168, the Telephone Solicitation Act of 2022 (“OTSA”), which updates the Oklahoma Consumer Protection Law and creates a stricter version of the TCPA. Most people are more familiar with the Federal TCPA laws, but states such as Florida, Washington, Arizona, Connecticut, Georgia, and now Oklahoma have “mini TCPA” laws in addition to the federal laws.
“This Oklahoma law is a big deal, folks. With a private right of action that mirrors the TCPA and an extremely vague and expansive definition of “autodialer” (along with other nasty provisions), this law cannot be overlooked. Caution, compliant platforms, and good counsel is highly advised.”
Puja J. Amin, Troutman Firm’s Co-Founder was equally as concerned:
“Florida and Oklahoma have adopted two of the most expansive “mini-TCPA” laws which is making it easier for plaintiffs to file mini-TCPA suits. Just like in Florida, if you are texting or calling Oklahoma consumers, you are at risk. And I fully expect other states to jump on this bandwagon.”
Here’s What Our Lawyer Eric Told Us About the New Law
- This new law restricts the use of automated technology and prerecorded messages by requiring express written consent before calling or sending a text message, for both administrative and marketing messages and imposes more restrictive call time restrictions than the TCPA. Specifically, no marketing messages may be made to consumers physically present in Oklahoma before 8:00 a.m., or after 8:00 p.m. local time. The OTSA however does exempt messages made when there is an established business relationship between the seller and consumer.
- The new law includes a massive expansive definition of an auto-dialer than the Federal TCPA that covers “calls made without consent using an automatic telephone dialing system, which is a device that uses a random or sequential telephone number generator to either store or produce a telephone number or the playing of a recorded message.” Instead, OTSA prohibits a person from making telephone solicitation messages using an ”automated system for the selection or dialing of telephone numbers” without the called party’s prior express written consent.
- The law includes a private right of action with potential damages as high as $1,500 for each willful violation, or actual damages, or $500, whichever is greater, for violations that are not deemed to be willful.
- In terms of placing any sales calls (even ones through autodialing or prerecorded messages for which there is express written consent), the commercial telephone solicitation phone call is prohibited before 8 a.m. and after 8 p.m. local time in the called person’s time zone. Note, this law changed Oklahoma’s nighttime call restriction from 9 p.m. to 8 p.m.
- The law includes a presumption that any call made to an Oklahoma area code is a call to an Oklahoma resident or to a person in the state, regardless of where the recipient actually resides. Although there is a presumption that calls made to OK numbers belong to an OK resident, that presumption is rebuttable where the caller has evidence that the consumer lives elsewhere.
- In terms of placing any commercial telephone solicitation calls (even ones through autodialing or prerecorded messages for which there is express written consent), a company cannot make more than three calls from any number to a person within a 24-hour period on the same subject matter or issue, and you can’t change the caller ID. While the law does not specifically define whether the three “calls” include texting and voice call, the best practice would be to treat them the same so that the total number of times you reach out to the consumer is no more than three times without hearing back from the consumer. This allows you to send a couple of texts and leave a voicemail. At that point, it should stop until at least 24 hours later.
- The law sets a cap on the number of calling attempts at three attempts per 24-hour period on the same subject matter or issue.
How to Start Preparing For These Changes
- First and most important, consult with counsel to review this new law, how it impacts your business, and what steps you should take (we’re not lawyers and nothing here can substitute legal advice from your own counsel).
- Ensure you are obtaining prior express written consent before placing calls or sending texts to Oklahoma area codes or Oklahoma residents. For more information on obtaining prior express written consent, check out our blog post.
- Maintain records of express written consent for at least five years from the last date the consent was relied upon to place a call or send a text. Get tips on how to best document and preserve express written consent with this blog post.
- Update your calling and texting times to Oklahoma area codes to 8 a.m. – 8 p.m.
- Cap the number of calls or text attempts to three per 24-hour period. This entails making sure your lists are de-duplicated to ensure that the same phone number coming in from various lead sources is accounted for.
- Do not manipulate or use a different caller-ID to conceal the identity of the caller.
- Document all your policy and procedure changes that were made and when they went into effect.
What Changes is Drips Making?
In anticipation of the November 1 Oklahoma “Mini TCPA” law, Drips will be updating its best practices and systems to limit the amount of scheduled (non-conversational, or transactional) touchpoints to three per 24-hours, only to go out within proposed scheduled sending hours for Oklahoma residents.
Please make sure you consult with your counsel to review this new law, how it impacts your business, and make sure your disclosures are updated to date.
Ready to partner with industry experts who understand the complexities of SMS marketing? Work with Drips!
Other States Our Legal Teams Are Monitoring — Stay Tuned!
Drips’ legal team is continuing to stay on top of laws that regulate telephone solicitations at the state level – the “mini-TCPA” laws. The laws vary from state to state and may be more expensive than the federal TCPA, making it critical for companies to review their compliance programs to ensure compliance with state laws.
Most recently, Michigan proposed its own Telephone Solicitation Act – “putting the rest to shame,” says our attorney Eric J. Troutman. Drips’ legal team is keeping a close eye on this new proposed Michigan act, which could significantly impact those telemarketing in Michigan. It introduces a host of new requirements and the potential of a massive private right of action allowing up to $1,000 a call PLUS attorney’s fees! Our legal team is keeping a close eye out on this for you.
Disclaimer: This blog and all information contained in it does not, nor is it intended to, constitute legal advice; instead, all information and content herein is for educational and informational purposes only. Information in this blog may not constitute the most up-to-date information, and Drips, the writers of this blog, and any contributors or contributing law firms herein disclaim any obligations relating to the timeliness or accuracy of the information contained here. No warranties should be implied. All liability with respect to any actions taken or not based on the contents of this blog is expressly disclaimed. Readers should consult with an attorney to obtain advice with respect to any particular legal manner, and no reader should act or refrain from acting on the basis of information on this blog without first seeking legal advice from counsel in the relevant jurisdiction.
