Q4 2022: DNC and TCPA Marketing Compliance Updates

As if uncertain economic conditions weren’t presenting enough of a challenge for organizations going into 2023, risk is also expanding in the form of constantly evolving Do-Not-Call (DNC) and TCPA regulations at the state and federal levels.   

Costly fines and penalties for DNC and TCPA violations – a whopping $500 to $1,500 per dial – can be detrimental to revenue teams trying to do more with less in the face of a possible recession. Instead of diminishing your budget or damaging consumer trust, stay up to date with the following marketing compliance updates from Q4 2022: 

Oklahoma Mini-TCPA Enacted 

The Oklahoma Telephone Solicitation Act of 2022 (OTSA) went into effect on November 1, 2022. Known as Oklahoma’s Mini-TCPA, the law removes established business relationship (EBR) and inquiry defenses from callers, and extends calling limitations to landlines, limiting outreach to merely three attempts every 24 hours. 

The law also expands the definition of “auto-dialer” to include any system that uses automation in the selection or dialing of telephone numbers without the prior express written consent of the called party. Additionally, it enacts a rebuttable presumption that “any call or text message to a phone number with an Oklahoma area code is made to an Oklahoma resident OR person physically present in the state at the time of receipt.” Other notable updates include: 

• An expansion of the auto-dialer definition to include dialers that use automation to determine the sequence in which numbers are called (human selection) or to dial numbers 
• Prohibition of telephonic sales calls that do not display the originating telephone number and name on the caller ID 
• Prohibition of sales calls that block caller ID or display a different phone number than the originating number 

• The application of automated call restrictions to landlines 
• A limitation on outbound sales calls after 8 pm local time 
• A limit on sales calls, even with consent, to three attempts per 24 hours 

The Oklahoma mini-TCPA contains a private right of action for consumers with penalties ranging from $500 to $1,500 per call or text message. You can read more about the bill here. 

New Legislation in 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’s Own Mini-TCPA 

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. 

Keeping up with State-Level Changes 

The bills referenced above for Massachusetts and Michigan are not yet laws, but it is important to note that each is another state jurisdiction looking to enact its own telemarketing regulations. The Telephone Consumer Protection Act (TCPA) is the federal statute designed to protect consumer privacy by restricting certain types of sales and marketing outreach communications. Because the TCPA has been subject to such a wide range of interpretation and enforcement by various Federal circuit courts over the years, states have increasingly been taking matters into their own hands to protect their consumers and therefore, passing these “Mini TCPAs”.  

Florida and Oklahoma are examples of states that have recently passed new laws regulating sales and marketing compliance, with active legislation for similar laws in Massachusetts and Michigan next in line.  

Ensure your organization is up to date with evolving state and federal marketing compliance regulations in 2023.