In the wake of the Supreme Court’s 2021 decision in Facebook v. Duguid—which held that most smartphones and similar modern technology do not qualify as “automated telephone dialing systems,” under the Telephone Consumer Privacy Act (TCPA)—there has been a spike in state legislative activity aimed at strengthening local telemarketing laws. Florida’s Telephone Solicitation Act (FTSA) became the first state telemarketing law of its kind on July 1, 2021. The FTSA, which does not clearly define the types of automated technology covered by the statute, creates room for a broader interpretation of the types of devices that can qualify as regulated dialing technology. Oklahoma has now become the next state to enact such legislation, the Oklahoma Telephone Solicitation Act (OTSA), which largely mimics the FTSA and came into effect on November 1, 2022.
The OTSA establishes certain restrictions on telemarketing calls and messages to Oklahoma residents. There is a rebuttable presumption that a call made to an Oklahoma area code is made to an Oklahoma resident at the time of the call. With limited exceptions, described below, the OTSA applies to any person or entity making a commercial solicitation telephone call to Oklahoma residents. Similar to Florida’s FTSA, the OTSA does not define “automated system for the selection or dialing of phone numbers,” which creates ambiguity over the law’s applicability to modern dialing systems. We expect plaintiffs in Oklahoma to push for a broad interpretation of the term, as we have seen already in Florida. If courts accept this interpretation, the Oklahoma telemarketing law would expand to cover many calls and messages sent by everyday devices, like cellular phones, which the Supreme Court determined were not covered by the TCPA. As Oklahoma is only the second state to enact such a law, this could begin a larger trend of states, either by statute language or by court interpretation, adopting this broader scope of covered devices.
The OTSA restricts the time, frequency, and manner in which commercial solicitation telephone calls or text messages may be made to Oklahoma residents. Specifically, the use of an auto-dialer requires the express written consent of the recipient. Because the OTSA does not define auto-dialer, the statute could be interpreted broadly to include electronic workflow tools, including click-to-dial systems. Until Oklahoma provides further guidance, absent prior express written consent, companies should use caution and opt for manually dialed numbers when contacting Oklahoma residents. The OTSA additionally prohibits the following telemarking activities:
- Calls before 8 a.m. or after 8 p.m. local time (in the recipient’s time zone);
- More than three calls or messages to a person over a 24-hour period on the same subject matter or issue;
- Calls that 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, or in order to obtain personal information from the recipient, which may be used in a fraudulent or unlawful manner; and
- Calls or messages that fail to transmit the originating telephone number and, when made available by the telephone solicitor’s carrier, the name of the telephone solicitor to any caller identification service in use by a recipient.
The OTSA provides for a few exemptions, including for certain financial institutions or similar entities; isolated solicitations that are not part of a pattern; solicitation of certain consumable items that cost less than $500; religious, charitable, political, or educational solicitations. Most notably, however, the OTSA provides a blanket exemption for solicitations to customers who have an established business relationship to the entity.
Like the TCPA, the OTSA prescribes a private right of action for individuals who are aggrieved as a result of a violation of the law. Violations may result in damages of up to $500 per violation, and willful and knowing violations can triple that amount. Given that “violation” can sometimes be interpreted as each separate call or email to every individual, these numbers can quickly add up for businesses. For example, a business that sent five negligent texts in violation of the statute to 2000 people each time could face statutory damages of $5,000,000.
Best Practices The FTSA and OTSA may quickly become the template that other states use to regulate text messages and prerecorded phone call operations. In light of this statute, businesses should be aware of their telemarketing and text-based marketing practices, especially to numbers with Oklahoma area codes. Where possible, obtain proper consent before communicating with individuals in covered states, and retain records of such consent. Finally, observing the OTSA’s time of day and call-frequency restrictions and rigorously maintaining and updating a “do not call” list .