Update: Oklahoma Governor has signed this bill and it will take effect on 11/1/2022.
After its April 26th unanimous passage by the Oklahoma Senate, the Oklahoma Telephone Solicitation Act of 2022 (HB 3168) has returned to the House, where it appears certain to pass and be enacted into law. The bill’s complicated definition of an “automated system” is very similar to Florida’s 2021 amended Telemarketing Sales Act, which shook the telemarketing world with its harsh and ambiguous “automated system” language, thereby becoming a favorite for Florida plaintiffs.
Notably, the Oklahoma Telephone Solicitation Act imposes a prior express written consent standard for sales calls, including texts and voicemails, made using an automated system or a recorded message. It also adds a private right of action for actual damages or statutory damages up to $1,500, whichever is greater, for any violation.
The bill’s definition of prior express written consent largely mirrors the TCPA’s definition, The consent language must explicitly cover voicemail messages. The bill does not state how robust the “consent not required” disclosure must be.
The problematic portion of the proposed legislation prohibits a person from making telephone sales calls using an “automated system for the selection or dialing of telephone numbers” without the called party’s prior express written consent. The bill does not define the “automated system for selection” phrase.
So, what does this phrase mean? It is hard to be certain without state guidance or court interpretations, but it could very well mean that businesses will be prohibited from automatically selecting numbers from indexed customer lists. If this interpretation proves true, the bill will reach beyond the TCPA’s prohibition against calls made without consent using an automatic telephone dialing system, which is a device that uses a random or sequential telephone number generator to either store or produce a telephone number.
Other provisions of HB 3168 include call volume limitations (maximum 3 per 24 hours), calling time restrictions (8am-8pm), and very specific caller ID restrictions. The bill enumerates several broad exemptions, including calls made for certain noncommercial purposes and calls made to a recipient with an established business relationship. Interestingly, the bill provides that “a commercial telephone seller” is exempt from the act; however, prohibitions on actions by commercial telephone sellers are found in other sections of the bill. Time will tell whether such a broad exemption was meant to be included.
If enacted, the bill would become effective November 1, 2022. Businesses should work with counsel to evaluate the potential impact of the bill as it relates to their call and text campaigns.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.