Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

Nearly one year after Florida introduced a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. Supreme Court’s narrowing of the applicability of the federal Telephone Consumer Protection Act (TCPA)), Oklahoma has followed suit. The Telephone Solicitation Act of 2022 was signed by Governor Stitt on May 20, 2022, and it takes effect on November 1, 2022.

The Oklahoma law is very similar to that of Florida. Notably, the Oklahoma law:

• Prohibits a person from making a telephonic sales call to either a cell phone or a landline if the call involves “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message,” unless the caller has the consumer’s prior express written consent. The definition of “prior express written consent” is analogous to the TCPA: a written agreement that (1) bears the signature of the called party, (2) authorizes the caller to deliver a telephonic sales call using an automated system for the selection or dialing of numbers, (3) includes the number that may be called, and (4) clearly and conspicuously discloses to the called party that (a) by executing the agreement, they authorize the call, and (b) they are not required to sign the agreement or agree to enter into it as a condition of any purchase.
• Does not explicitly define “automated system.” On its face, the term appears broader than the federal definition of an “autodialer” because it is not limited to equipment that uses a “random or sequential number generator” to store or produce phone numbers, as recently narrowed by the U.S. Supreme Court.
• Includes marketing text messages within its scope.
• Imposes a limit of three commercial calls in a 24-hour period on the same issue.

Companies should stay aware of the differences among the TCPA and various state laws, which continue to evolve—and may, like Florida and Oklahoma, provide for statutory damages and a private right of action.