Small in name only: the mention of “Small TCPA” carries serious problems and serious potential risks

The list of states with new or revised telemarketing laws, sometimes referred to as “mini-TCPAs,” is growing. A series of government legislative actions have created often conflicting rules that companies must navigate when communicating with customers and consumers via phone or text. Plaintiffs may bring claims under many of these statutes in addition to or in conjunction with claims under the federal Telephone Consumer Protection Act (TCPA).

A growing number of states strengthened their telemarketing laws in part due to the Supreme Court’s ruling on Facebook v. Duguid, 141 S. Ct. 1163 (2021), a landmark case that significantly narrowed the definition of an automated dialing system (ATDS or autodialer), under the TCPA. Many new and amended state laws have a broader definition of ATDS than the TCPA, and many states impose other unique restrictions on telephone and text communications. In this alert, we discuss the relevant laws in Arizona, Connecticut, Maryland, New York and Virginia. The legislatures of Oklahoma, Washington, and Florida have also been active in this space, as discussed in our previous posts.

Arizona

On April 12, 2023, Arizona Governor Katie Hobbs signed into law House Bill 2498.

This bill amended Arizona’s existing telemarketing law to address the use of text messages by solicitors. Arizona law previously prohibited attorneys from calling numbers on the National Do Not Call Registry (DNC) without permission, an employment agreement or a “personal relationship.” The bill defines the latter exception as “responding to a referral from a common person with whom the consumer has a personal relationship.” The amended law now prohibits attorneys from sending text message requests to phone numbers at the DNC, without such authorization or affiliation.

The Arizona attorney general has the power to enforce this bill and violators can be fined up to $1,000 for each violation.

The bill went into effect immediately after signing.

Connecticut

On June 26, 2023, Connecticut Governor Ned Lamont signed Senate Bill 1058 into law. This law amends the provisions of Connecticut’s previous telemarketing law that has been in effect since 2014.

The amended law contains some restrictions that prohibit the telemarketing of any state law, generally prohibiting any telemarketing call to consumers. The new law provides that “no telemarketer may make, or cause, a telephone sales call to a consumer without the consumer’s prior written consent.” Before the amendment, Connecticut’s law was more in line with other state laws that prohibited telemarketing calls only if they were automatically made and recorded, and also made without prior written consent.

Connecticut law broadly defines a “telemarketing sales call” as calls “made by direct voice, automated dialing system, recorded message device, voice board technology, advanced messaging or text or media messages.” As explained, the law seems to cover all types of phones. A text message is defined as “a message consisting of text or any image, sound or other information that is sent by or to a device identified as the device that sent or received such text.”

Connecticut law also mandates that within the first 10 seconds of all telemarketing calls, the telemarketer identify himself to the caller (ie, the company), and the purpose of the call. The telemarketer must also ask “if such consumer wishes to continue such sales call, end such sales call or be removed from such person’s list.” Once a Connecticut consumer indicates their intention to hang up, the telemarketer must end the call within 10 seconds.

Connecticut’s mini-TCPA restricts telemarketing calls between 9 a.m. and 8 p.m. Unlike many other states’ mini-TCPAs, Connecticut does not limit the number of calls or texts a user can make in a 24-hour period.

The Connecticut mini-TCPA allows for the recovery of statutory damages of up to $20,000 per violation, in addition to the remedies available under the Connecticut Unfair Trade Practices Act. Since the law is enforced under Connecticut’s consumer protection law, this includes actions that can be taken to recover actual damages and attorney’s fees. This is more than almost any other TCPA state or federal TCPA.

The amendment will come into force on 21 October 2023.

Maryland

On May 3, 2023, Maryland Governor Wes Moore signed the Stop the Spam Calls Act of 2023 into law.


Maryland’s “TCPA” prohibits a person from “making or causing a telephone solicitation, including an automated call or recorded message” to cell phones and landlines without prior written consent. This definition of autodialer is broader than what the federal TCPA provides, and is nearly identical to the definition in Florida’s mini-TCPA prior to its recent amendment. As noted in the previous alert, the Florida version of the mini-TCPA caused such a surge in litigation that the Florida legislature rewrote its statute to bring it back within federal standards.

Maryland law also defines “prior written consent” as “a written agreement” that “bears the signature of the named party,” “expressly authorizes the person making or permitting the placement of a telephone solicitation by telephone, text message, or voicemail.” ” and includes a telephone number to be called. In addition, the consent should contain a “clear and distinct disclaimer” warning that the subject is not required to purchase any property, product or service as a result of his consent.

Additionally, Maryland law includes a strict ban on the use of any caller ID technology to prevent the identity and number of telemarketers. The law also prohibits a telemarketer from intentionally displaying a different phone number on caller ID.

As with most other state TCPAs, the law prohibits telemarketers from making more than three calls or sending more than three text messages to the same user in a 24-hour period, as well as prohibiting telemarketers from making calls before or after 8 a.m. of there. 8 in the afternoon.

Although Maryland law does not have a separate penalty provision, violations of the law include violations of the Maryland Consumer Protection Act (MPCA). Violations of the MPCA allow the Maryland Attorney General or any person (including on behalf of an indigent group) injured by the violation to bring an action to recover damages of up to $2,500.

The new law is expected to come into force on January 1, 2024.

New York

On December 6, 2022, New York Governor Kathy Hochul signed into law S.8450-B/A.8319-C, amending New York’s mobile phone sales laws.

The amended law requires telemarketers to offer consumers the option to be added to their internal DNC list at the start of a telemarketing call. New York law now requires telemarketers to provide customers with this option immediately following the telemarketer’s name and company name.

This is in contrast to many other states, which also require that the operator give customers the option of being added to a local DNC, but only after the operator states a specific reason for the call.

Then, on September 13, 2023, New York again amended its telemarketing law to allow for increased civil penalties for DNC violations. The New York Attorney General now has the authority to impose fines of up to $20,000 per violation. The previous maximum fine was $11,000.

This amendment came into force immediately upon signing.

Virginia

More recently, the Virginia Mobile Privacy Protection Act amended in 2020 follows several other laws discussed above. The 2020 amendment clarifies the law’s definition of “solicit call” to include text messages as well as voice calls to landlines and cell phone numbers.

In addition, Virginia law requires the telephone solicitor to identify himself “immediately” by the first and last name and the name of the person on whose behalf the solicitation call is being made.

The 2020 amendment increased the fine for each violation to $500 for the first violation, $1,000 for the second violation, and $5,000 for each subsequent violation. The law allows individuals to take action, including the Attorney General of the state of Virginia.

Finally, companies should also note that this law contains an unusual liability provision. The law states that “a seller on whose behalf or for whose benefit a telephone solicitor makes or initiates a solicitation call in violation of any provision of the (Virginia mini-TCPA) and the telephone solicitor who makes or initiates the call shall be jointly and severally liable for the violation like that.” Therefore, third-party telemarketers and consumer-facing companies may be held equally liable for violations of Virginia’s sub-TCPA.

Conclusion

The trend for states to enact or amend their own restrictive TCPAs continues, raising the specter of statutory or punitive damages awards in states to increase the risk of violating the federal TCPA. This model also creates an inconsistent patchwork of laws across jurisdictions. Given that many states may enact or amend telemarketing laws, businesses that communicate with their customers and consumers by phone or text should be aware of changes in state telemarketing laws, particularly those that provide for a private right of action. and legal penalties.

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If you have any questions about this Legal Notice, please feel free to contact any of the attorneys listed or an Eversheds Sutherland attorney with whom you regularly work.