Q1 2023 Updates in DNC and TCPA Marketing Compliance

Are your customer communications 100% compliant with Do-Not-Call (DNC) and Telephone Consumer Protection Act (TCPA) compliance regulations? In the current economy, customer experience and consumer trust has never been more integral to the success of businesses.  

Consider the risk of manually managing the myriad of DNC and TCPA restrictions for your organization; with fines up of $500 to $1,500 per dial, the consequence of contacting a consumer in violation of a DNC list or TCPA requirement can be detrimental. Not only are violation fines costly, but the damage to consumer trust and your brand reputation can be disastrous, especially in an uncertain economy. 

To help safeguard your organization, you can find our full compliance checklist for 2023 here, and continue reading for the latest marketing compliance changes and proposed changes at the state level that your organization needs to know to protect your brand. 

New Updates to DNC and TCPA Marketing Compliance  

New York  

A bill signed into law by New York Governor Kathy Hochul is set to go into effect next month. In March 2023, businesses making sales and marketing calls to consumers must communicate the consumer’s right to be added to that businesses’ DNC list before stating the reason for the call. Businesses are now required to train their workforces to adhere to the following steps in their outreach efforts:  

• Provide their own name, as well as the name of the business on whose behalf they’re calling  
• Tell the consumer that they may add themselves to the business’s DNC list  
• Disclose (in any order):  
  • Whether the call is being recorded 
  • The purpose of the call 
  •  The identity of the goods or services being sold 

Penalties for violations of this New York Internal Do Not Call Disclosure law could result in penalties up to $11,000.  

State Legislation in the Works 

The bills referenced below are not yet laws, but it is important to note that each is another state jurisdiction looking to enact its own telemarketing regulations.  

Georgia  

Georgia is currently considering legislation that would create a private right of action for violations of the state’s Do Not Call Registry rules, with recovery of actual damages or $2,000 per violation. On February 15th, the state Senate unanimously approved the bill, which would allow Georgia residents to hold companies liable for illegal telemarketing calls made by third-party contractors on their behalf. The bill would also allow residents to pursue class-action lawsuits against telemarketers. 

Massachusetts  

House Bill No. 469, introduced on June 30th, 2022, was enacted to clarify the definition of “Telephone Solicitation.” The bill amends the following three sections of Chapter 159 C of the Massachusetts General Laws:   

• Section 15, Definitions: clarifying/redefining “Consumer”; “Hands Free Mobile Telephone”, “Robocall”, “Informational Call” and Pre-existing Business Relationship”  
• Section 16, Violations & Fees: Civil penalty of no less than $10,000 if a knowing violation  
• Section 17, Time Limitations for Actions: No actions may be brought more than 5 years after the person bringing the action knew or should have known of the violation.  

Michigan 

The State of Michigan is looking to pass its own mini-TCPA, entitled Michigan’s “Telephone Solicitation Act.” Under the bill, an ATDS is referred to as an “ADAD” or “automatic dialing and announcing device,” meaning any device or system of devices that is used, whether alone or in conjunction with other equipment, for the purpose of automatically selecting or dialing telephone numbers. Other key provisions in the bill include:  

• “A telephone solicitor shall keep, for not more than 4 years, records relating to telephone solicitations;  
• A person shall not make a telephone solicitation using a recorded message in whole or in part (even with consumer consent);  

• At the beginning of a telephone solicitation, the organization or other person on whose behalf the call was initiated shall state the telephone solicitor’s true first and last name and the full name, address, and telephone number of the organization or other person on whose behalf the call was initiated; and  
• A telephone solicitation cannot be made outside the hours of 9:00 a.m. and 8:00 p.m. local time, without the express verifiable authorization of the subscriber.” 

The proposed mini-TCPA would authorize the State Attorney General’s Office to seek up to $25,000 for every violation of the proposed statute, with the penalty increasing to $50,000 if the violation targeted vulnerable individuals (defined as someone who is 75 or older, or who is disabled as “defined in section 103 of the persons with disabilities civil 1 rights act, 1976 PA 220, MCL 37.1103.)  

Further, if the violation is found to be “persistent or knowing”, the fine would increase to $75,000. These fines come in addition to $1,000 (plus attorney fees) that a plaintiff can claim for each violation of the mini-TCPA in a private right of action proceeding.  

Recent Legislation Updates to Know 

The TCPA – the federal statute designed to protect consumer privacy by restricting certain types of sales and marketing outreach communications – has been subject to a wide range of interpretation and enforcement by various Federal circuit courts over the years. In response, states have recently taken matters into their own hands and passed their own laws regulating sales and marketing compliance to protect their consumers and passed these “Mini TCPAs”.   

Oklahoma: The Oklahoma Telephone Solicitation Act of 2022 went into effect on November 1, 2022, expanding the definition of “auto-dialer” and removing established business relationship (EBR) and inquiry defenses from callers. It also extends calling limitation to landlines, limiting outreach attempts to three per 24 hours.  

Washington: Washington House Bill 1497 went into effect in June 2022, revising portions of Washington’s new telemarketing laws, including the definition of “telephone solicitation” and the reach of a do-not-call request.  

Utah: Utah House Bill 217 went into effect in May 2022, modifying the definition of “telephone solicitation” in Utah’s Telephone Facsimile Solicitation Act, and prohibits telephone solicitations made to cell phones without prior consent.  

You can read all of the provisions included in these state-level legislation here. 

Ensure Your Organization is up to Date with DNC and TCPA Compliance 

While compliance can get complicated, it doesn’t have to be. Learn why top organizations are utilizing automated compliance solutions to streamline email marketing compliance and contact preference management to protect consumer trust and satisfaction rates.