Aaron Tift

A new bill takes effect November 1, expanding the scope of potential liability for Oklahoma businesses that use phone or text message marketing. The Oklahoma Telemarketing Act (“OTSA”), modeled after the Federal Telephone Consumer Protection Act (“TCPA”), imposes significant restrictions on the use of calls and text messages for marketing purposes.

OTSA prohibits the use of “automated systems” for “commercial telephone sales calls” without the “prior express written consent” of the “called party”. Anyone who believes they have received a call or message that violates OTSA can sue the caller privately for at least $500. It’s not clear in the law if this allows the plaintiff to claim him $500 for each of her calls, but similar laws, including the TCPA, apply statutory damages based on a single call. .

Unfortunately, OTSA does not have a clear definition of “automated system” or “call” per se.

When referring to an “automated system,” the law only defines it as being used to “select or dial telephone numbers or play recorded messages.” This definition is vague and broad enough to easily encompass nearly all forms of modern dialing via computer platforms and smartphones.

Similarly, the law does not give companies clear guidance on the definition of a “commercial telephone sales call.” Many places in OTSA seem to refer to traditional voice telephony “calls”. However, in defining consent requirements, OTSA requires consent language to include reference to authorization of such “calls” via “text messages.” This strongly suggests that OTSA includes text messages within the scope of “commercial telephone sales calls.” Therefore, the company should assume that text messages are within the same restrictions and consent requirements of his OTSA.

The upcoming implementation of OTSA will only increase the need for Oklahoma businesses to seek appropriate legal and regulatory guidance. Businesses must ensure compliance with both existing federal regulations and OTSA’s extensive new regulations. His TCPA plaintiffs in the class action lawsuit have already filed numerous lawsuits in Oklahoma seeking millions of dollars in statutory damages. To avoid the potential liability and costly defense of these cases, companies should anticipate future litigation under OTSA, work closely with legal counsel to ensure compliance, and avoid potential exceptions to OTSA. should be identified and the overall liability exposure should be reduced.

Aaron Tift is an associate attorney in Hall Estill’s Tulsa office.

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