Another State Launches A Mini-TCPA

May 14, 2023
Andrew Cove

The Telephone Consumer Protection Act (or “TCPA”) is a federal law initially passed in 1991. Though it has been amended and updated several times, it imposes several limitations and restrictions on the calls, texts, and even faxes that telemarketing companies make. Most importantly, it prevents them from using automated telephone dialing systems and prerecorded voice messages. Of course, that is only a superficial glimpse at what the TCPA is, and if you want to read more about it, you can do so by looking at some of our previously published blogs, where we elaborate further. 

A related area that we have covered in the past is the enactment of Florida’s mini-TCPA, which was state legislation that, in many ways, is more strict than its federal predecessor. Florida hasn’t been the only state to create a “mini-TCPA” but it’s been on the leading edge of a small movement to pass new state laws which mimic the federal model. Other states include Washington, Connecticut, Georgia, and Washington. 

Most recently, Oklahoma passed the Oklahoma Telephone Solicitation Act (OTSA), adding them to the lengthening list of states where telemarketers must work within the confines of new state legislation. Many of these states—and now, Oklahoma—have notoriously rigid mini-TCPAs and companies operating in there have to be more aware of the dangers posed and the potential for more state law-based consumer lawsuits against them. 

Breaking Down the OTSA

Before we look closer, knowing the difference between transactional and promotional texts is essential. These are sometimes referred to as administrative and marketing texts, respectively. 

  • Transactional/Administrative: Texts that contain necessary information. Think of a time when you booked something online, and the company texted you to confirm your number. Or a time that a restaurant texted you to confirm your reservation. 

OTSA requires telemarketers to have express written consent for both types—which is even more than the TCPA itself requires. Along the same lines, the TCPA allows telemarketing companies to contact people between 8:00 am and 9:00 pm, but the OTSA cuts that daily calling window by one hour – to 8:00 pm. 

In Facebook, Inc. v. Duguid, we saw how the definition of an autodialer was successfully challenged. The TPCA prevents telemarketers from using an “automatic telephone dialing system” without consent. The OTSA changes that wording and effectively broadens the definition of illegal dialing technology in that state. Instead of an ATDS, they refer to an “automated system.” Though this is Oklahoma’s mini-TPCA, it inevitably impacts telemarketers nationwide. For example, unless a telemarketer has evidence to show otherwise, OTSA covers anyone with an Oklahoma number—regardless of where they live. Because people rarely change cell phone numbers (which is one reason SMS marketing is so powerful), people who leave the state with an Oklahoma-based cell phone number may still fall under the umbrella of the OTSA. 

Partner with Cove Law, P.A.

With the addition of “mini-TCPAs,” the telemarketing professional’s job is only becoming more challenging. The evolving rules and regulations governing their industry only increase the risk of being exposed to catastrophic lawsuits. Cove Law, P.A., has been working with people in the telemarketing industry for well over 30 years and we understand the hurdles you face. Contact us for professional legal assistance with maintaining compliance to schedule your free consultation.

Andrew Cove
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