The list of states with new or amended telemarketing statutes, sometimes known as “mini-TCPAs,” is growing. A flurry of state legislative activity has created a patchwork of often-conflicting laws that companies must navigate when communicating with customers and consumers via phone or text. Plaintiffs can bring claims under many of these laws in addition to or in conjunction with claims under the federal Telephone Consumer Protection Act (TCPA).
A growing number of states bolstered their telemarketing rules in part due to the Supreme Court’s ruling in Facebook v. Duguid, 141 S. Ct. 1163 (2021), the landmark case that significantly narrowed the definition of an automatic telephone dialing system (ATDS or auto-dialer), under the TCPA. Many of the new and amended state laws have broader definitions of ATDS than does the TCPA, and many states impose other unique restrictions for communicating via phone and text. In this alert, we discuss the relevant laws in Arizona, Connecticut, Maryland, New York and Virginia. The legislatures in Oklahoma, Washington, and Florida have also been active in this space, as discussed in our prior alerts.
Arizona
On April 12, 2023, Arizona Governor Katie Hobbs signed into law House Bill 2498.
This bill amended the existing Arizona telemarketing law to address the use of text messages by solicitors. Arizona law previously prohibited solicitors from calling a number on the National Do Not Call (DNC) Registry without consent, employment agreement or a “personal relationship.” The bill defines the last exception as “in response to a referral from a natural person with whom the consumer has a personal relationship.” The amended law now specifically prohibits solicitors from transmitting text message solicitations to telephone numbers on DNC, without such consent or relationship.
The Arizona state attorney general has the power to enforce this bill and violators may be fined up to $1,000 per violation.
The bill became effective immediately on signing.
Connecticut
On June 26, 2023, Connecticut Governor Ned Lamont signed into law Senate Bill 1058. This law amends provisions of Connecticut’s previous telemarketing law that has been in effect since 2014.
The amended law contains some of the most restrictive prohibitions against telemarketing of any state statute, generally restricting any telemarketing call to a consumer. The new law provides that “no telemarketer may make, or cause to be made, a telephonic sales call to a consumer without such consumer’s prior express written consent.” Prior to the amendment, Connecticut’s law was more in line with other state statutes that prohibit telemarketing calls only if they were automatically dialed and recorded, as well as made without prior written consent.
Connecticut’s law broadly defines “telemarketing sales call” as calls “made by way of a live voice, an automated dialing system, a recorded message device, soundboard technology, over-the-top messaging or text or media messaging.” As defined, the law appears to cover every type of call. Text message is defined as “a message that consists of text or any image, sound or other information that is transmitted by or to a device that is identified as the device that sent or received such text.”
The Connecticut statute also mandates that within the first 10 seconds of all telemarketing calls, the telemarketer identify themselves and the calling party (i.e., the company), and the purpose the call. The telemarketer must also ask “whether such consumer wishes to continue such telephonic sales call, end such telephone sales call or be removed from such person’s list.” Once a Connecticut consumer indicates their desire to end a call, the telemarketer must end the call within 10 seconds.
Connecticut’s mini-TCPA limits telemarketing calls to between 9 am and 8 pm. Unlike many other states mini-TCPAs, Connecticut does not limit the number of calls or text messages that can be sent to a consumer in a given 24-hour period.
The Connecticut mini-TCPA allows for recovery of statutory damages of up to $20,000 per violation, as well as remedies available under the Connecticut Unfair Trade Practices Act. Since the law is enforceable under Connecticut’s consumer protection statute, this includes potential class actions to recover actual damages and attorneys’ fees. This is far beyond almost any other state mini-TCPA or the federal TCPA.
The amendments go into effect on October 21, 2023.
Maryland
On May 3, 2023, Maryland Governor Wes Moore signed the Stop the Spam Calls Act of 2023 into law.
Maryland’s “mini-TCPA” prohibits a person from “making or causing a telephone solicitation, including a call made through automated dialing or recorded message” to both cell phones and landlines without prior express written consent. This definition of auto-dialer is broader than what the federal TCPA provides, and nearly identical to the definition in Florida’s mini-TCPA prior to its recent amendments. As noted in a prior alert, that version of the Florida mini-TCPA caused such an increase in litigation that the Florida legislature re-wrote its law to bring it back within federal standards.
The Maryland statute also defines “prior express written consent” as a “written agreement” that “bears the signature of the called party,” “clearly authorizes the person making or allowing the placement of a telephone solicitation by telephone call, text message, or voicemail” and includes the telephone number to be called. In addition, the consent has to contain a “clear and conspicuous disclaimer” warning that the called party is not required to purchase any property, goods or services as a result of their consent.
Furthermore, the Maryland statute includes a strict prohibition on the use of any caller identification technology to block the identity and number of telemarketers. The statute also prohibits a telemarketer from intentionally displaying a different telephone number on a caller ID.
As with most other state mini-TCPAs, the statute prohibits telemarketers from placing more than three calls or sending more than three text messages to the same consumer during a 24-hour period, as well as prohibiting telemarketers from making calls before 8 am or after 8 pm.
Although the Maryland statute does not contain a separate penalty provision, a violation of the law constitutes a violation of Maryland’s Consumer Protection Act (MPCA). Violations of the MPCA allow Maryland’s Attorney General or any person (including on behalf of a putative class) injured by a violation to bring an action to recover damages of up to $2,500.
The new law is set to take effect on January 1, 2024.
New York
On December 6, 2022, New York Governor Kathy Hochul signed into law S.8450-B/A.8319-C, amending New York’s telemarketing laws.
The amended law requires telemarketers to provide consumers the option to be added to their internal DNC list at the beginning of a telemarketing call. The New York law now requires that telemarketers give customers this option immediately following the telemarketer’s name and company’s name.
This is in contrast to most other states, which also have requirements that the telemarketer gives customers the option to be added to an internal DNC, but only after the telemarketer has stated a particular reason for the call.
Then, on September 13, 2023, New York again amended its telemarketing law to allow for an increase in the civil penalties for DNC violations. The New York Attorney General now has the authority to level a fine of up to $20,000 per violation. The previous maximum fine amount was $11,000.
These amendments became effective immediately on signing.
Virginia
Less recently, the Virginia Telephone Privacy Protection Act amended in 2020 tracks several of the other laws discussed above. The 2020 amendments clarify the law’s definition of “telephone solicitation call” to include text messages in addition to voice calls to landline and cell phone numbers.
In addition, the Virginia law requires a telephone solicitor who makes a telephone solicitation call to identify themselves “promptly” by first and last names and the name of the person on whose behalf the telephone solicitation call is made.
The 2020 amendment increased the fine per violation so that it is $500 for the first violation, $1,000 for the second violation, and $5,000 for each subsequent violation. The law allows for individuals to bring actions, as well as the Virginia state Attorney General.
Finally, companies should also note that this law has a somewhat unusual vicarious liability provision. The law states that a “seller on whose behalf or for whose benefit a telephone solicitor makes or initiates a telephone solicitation call in violation of any provision of [the Virginia mini-TCPA] and the telephone solicitor making or initiating the telephone call shall be jointly and severally liable for such violation.” Thus, third party telemarketers and consumer facing companies alike may be held equally liable for violations of the Virginia mini-TCPA.
Conclusion
The trend of states enacting or amending their own restrictive mini-TCPAs continues, raising the specter of statutory damage awards or penalties in states to compound the existing risk from running afoul of the federal TCPA. This trend also creates an inconsistent patchwork of rules across jurisdictions. Given that more states will likely enact or amend telemarketing rules, businesses that contact their customers and consumers by phone or text should stay abreast of changes in state telemarketing laws, particularly those that provide a private right of action and statutory penalties.
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