By Ellen T. Berge & Jay Prapaisilp

Telemarketers celebrating the new year should be aware of Maryland’s new telemarketing law, Stop the Spam Calls Act, which took effect January 1, 2024. Like the federal Telephone Consumer Protection Act (TCPA), Maryland now prohibits telephone solicitations (i.e., marketing calls and texts) without the prior express written consent of the called party. But unlike the TCPA, which prohibits the use of an “autodialer” or “ATDS,” the Maryland Act prohibits the use of an “automated system.”

What constitutes an autodialer has been thoroughly litigated up to the U.S. Supreme Court. There, the justices decided that an autodialer is a device that “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.”

But what constitutes an automated system under Maryland law is less clear, and the Act provides no clarity. We previously covered a similar situation relating to the Florida Telephone Solicitation Act (FTSA). The FTSA’s original language also broadly prohibited the use of an “automated system,” which led to a flood of litigation, to the point where the Florida legislature stepped in and narrowed the definition.

In Maryland, telephone solicitations are also restricted between 8:00 p.m. and 8:00 a.m., and callers cannot make solicitations more than three times to the same called party during a 24-hour period on the same subject matter or issue, regardless of the telephone numbers used to make the call.

Under Maryland’s Act, Md. Code, Com. § 14-4501 defines “prior express written consent” to mean a written agreement bearing the called party’s signature that “clearly authorizes the person making or allowing the placement of a telephone solicitation by telephone call, text message, or voicemail to deliver or cause to be delivered to the called party:

1. A telephone solicitation using an automated system for the selection or dialing of telephone numbers;
2. The playing of a recorded or artificial voice message when a connection is completed to a number called; or
3. The transmission of a prerecorded voicemail”

Without this consent, violations will be considered an unfair or deceptive trade practice and will be subject to regulatory enforcement or private litigation.

Some exemptions to the Act include non-commercial solicitations for religious, charitable, political, or educational purposes, certain business-to-business sales, and communications between a business and a customer that have an existing business contract or relationship.

Companies should carefully review their marketing campaigns to ensure compliance with the new Act, especially given that, in its first year, it remains to be seen how courts will interpret the term “automated system” and whether private plaintiffs will jump at the chance to litigate against unprepared companies.

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