Oklahoma’s Mini-TCPA Takes Effect

TCPA Connect

The potential for liability for callers has increased yet again, with Oklahoma’s Telephone Solicitation Act (OTSA) taking effect as of November 1.

Following in the footsteps of Florida by passing its own state analogue to the Telephone Consumer Protection Act (TCPA), Oklahoma enacted the new law in May 2022.

The OTSA applies to telephonic sales calls that involve “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.”

Similar to the Florida Telephone Solicitation Act (FTSA), this broad definition encompasses more than the TCPA’s automatic telephone dialing system (ATDS), as even systems that do not randomly or sequentially generate numbers but have some automated method of selection and/or dialing (e.g., where a system dials numbers automatically from a stored list) appear to be covered.

The OTSA prohibits the use of an automated system to make a telephonic sales call without the prior express written consent of the called party. To obtain consent, a caller must provide a clear and conspicuous disclosure that clearly authorizes the placement of a commercial telephone call.

Taking a page from the FTSA, Oklahoma also prohibits more than three calls in a 24-hour period and requires that no telephonic sales calls be made between the hours of 8 p.m. and 8 a.m.

The OTSA further makes it unlawful to “intentionally alter the voice of the caller in an attempt to disguise or conceal the identity of the caller in order to defraud, confuse, or financially or otherwise injure the recipient of a telephonic sales call or in order to obtain personal information from the recipient of a telephone sales call, which may be used in a fraudulent or unlawful manner.”

In another FTSA parallel, the OTSA contains a rebuttable presumption that a telephonic sales call made to any state area code is made to an Oklahoma resident or to a person in the state at the time of the call.

The law includes several notable exemptions.

Specifically, calls made for certain noncommercial purposes, calls made to a recipient with an established business relationship, calls by most licensed financial institutions and investment advisors, and calls by any retailer with a physical footprint generating most of its revenue from a physical store rather than from telephone solicitations are all excluded from the OTSA’s prohibitions.

Importantly, like the FTSA, the OTSA provides a private right of action, with damages set at $500 per violation, trebled for willful or knowing violations. However, unlike the FTSA, the law does not provide awards for attorney’s fees or costs.

To read the OTSA, click here.

Why it matters: With the OTSA now in effect, companies that make calls to area codes or residents in the state should ensure compliance with the new requirements, many of which track with Florida’s mini-TCPA, and be on the lookout for other new laws as other states increasingly consider similar measures.

manatt-black

ATTORNEY ADVERTISING

pursuant to New York DR 2-101(f)

© 2022 Manatt, Phelps & Phillips, LLP.

All rights reserved