States Continue Proposing Unique Telemarketing Laws

Much attention has been paid recently to telemarketing developments on the federal level with the proposed Do Not Disturb Act, as well as with various rule changes by the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC). But also worthy of serious attention are the states that are continuing a pattern of proposing unique laws that are more strict than federal requirements.

While not so unique at this point, it’s still important to note that West Virginia became the latest state this past January to propose its own “mini-TPCA.” If passed, West Virginia would join Oklahoma and Maryland in broadly defining an automated system as one that selects or dials a telephone number, thereby capturing many dialing platforms that would not otherwise be considered an automated system under the Telephone Consumer Protection Act (TCPA) after the Supreme Court’s 2021 Facebook v. Duguid decision. The proposed law would also limit the number of call attempts to three within 24 hours and restrict the calling time to 8AM to 8PM, as do Oklahoma, Maryland, and Florida. We will continue to track this proposed law.

Other notable developments:

1. Illinois has proposed a bill, among other things, limiting calls to three within 24 hours, making it the first state to impose such a limit that isn’t part of a wider mini-TCPA proposal with the broader definition of an automated system.
2. Missouri has proposed a bill that would allow businesses to place their numbers on the state DNC list, joining Pennsylvania as the only other state to do so.

Some of the more unique new state telemarketing laws include:

Connecticut

Last year, we saw Connecticut become the first state to effectively ban cold calling. As of October 1, 2023, in the absence of specific exceptions, businesses must have express written consent to make telemarketing calls to Connecticut residents (plus to any consumer with a Connecticut area code, unless businesses can prove that consumer lives in another state) even if the consumer is not on a Do Not Call (DNC) list.

Mississippi

We could be adding Mississippi back to the list of states that has its own DNC list, but it would be very different from anything we have seen. Readers may recall that Mississippi was previously one of the states that maintained its own separate list of consumers who wished not to be called, but, in July of last year, Mississippi stopped maintaining its own list and began referring consumers to register for the National DNC Registry. Now, the state has proposed a new law that will, among other things, allow the state Attorney General to set up a process for Mississippi residents to be able to opt out of all calls, even those that are usually exempt. If a Mississippi consumer’s number is on the National Registry, established business relationship (EBR) exemptions would still apply, but this new law would effectively create a separate, no-exception DNC list, a first of its kind, that businesses would have to scrub against. This law has already passed the Mississippi House 142 to 0 (with 2 non-votes) and has been sent to the state Senate. As currently written, if passed, the law would become effective in just over three months on July 1, 2024, however, we would anticipate it could take some additional time for the Attorney General’s office to operationalize this no-exception DNC list. With such overwhelming bipartisan support in the House, it’s difficult to imagine it not passing the Senate be or being signed by the Governor.

Summary

We expect to see this trend of states introducing unique laws to continue. As we’ve seen in many instances, once one state introduces a law that other states think will help reduce unwanted telemarketing calls or at least weed out bad actors, they will propose the same language or even their own variation. Examples include the mini-TPCA states referenced above, as well as states requiring businesses to disclose on calls the right to be added to internal DNC lists, as well as their phone numbers and/or business addresses.

CompliancePoint continuously monitors for developments regarding state telemarketing laws. If you have questions about how these laws could impact your organization’s marketing efforts, please contact us at connect@compliancepoint.com.