Oklahoma Proposed Autodialer Legislation Would Cause Litigation to Come Sweepin’ Down the Plain

Musical Theater was one of my favorite elective courses in high school, probably because a fair amount of the curriculum involved watching musicals on television. (Kids today will never feel the absolute exuberation from seeing a VCR cart being rolled through the classroom door.) One of the catchiest tunes I remember was the main title track from Rodgers & Hammerstein’s classic, Oklahoma!

A recent bill introduced in the Oklahoma state legislature has me humming that tune, though I’m not so sure the “wavin’ wheat,” which “can sure smell sweet when the wind comes right behind the rain” will be able to mask the stench rising from the influx of telemarketing litigation that surely will be filed in the state, should the bill as proposed actually become law.

Oklahoma House Bill 3168 (which is available here), as currently drafted, prohibits “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.) The disjunctive “selection or dialing” term is the same as the one employed in the current version of the Florida Telephone Solicitation Act (FTSA), which we’ve blogged about previously here.

The amended FTSA went into effect on July 1, 2021, and, immediately, scores of putative class actions alleging the unlawful use of an autodialer under that statute were filed. In fact, according to the Florida legislature, “at least 100 class action complaints against those who make telephone sales calls [or send marketing text messages]” have been filed since July 2021. As we’ve described previously, the Florida legislature is acting to fix the FTSA and, in particular, its autodialer provision in an attempt to stem these abusive litigations—and there have been some more recent proposed amendments, which are even more helpful and will be blogged about soon. (Feel free to call me if you’d like a legislative update and preview in advance.)

In any event, back to Oklahoma. Although House Bill 3168 does not define “telephonic sales call,” the legislation specifically exempts calls “soliciting business from prospective consumers who have an existing business relationship with or who have previously purchased from the business enterprise for which the solicitor is calling if the solicitor is operating under the same exact business name.” (The current version of the FTSA does not contain such an exemption.) Thus, a seller may use an autodialer—whatever that winds up being—under the Oklahoma bill if it has either prior express written consent from or an established business relationship (EBR) with the consumer.

Nonetheless, if there is any lobbying effort to be made, it would be a good idea for the autodialer provision to be brought in line with the federal Telephone Consumer Protection Act or the proposed FTSA amendments. That way, there is a second level of litigation defense for telemarketers trying to do it right, i.e., (1) prior express written consent or an EBR exists, justifying any complained-of calls or text messages, and (2) no autodialer was used in any event, because the called number was not pulled out of thin air or randomly or sequentially generated. Such an amendment would help avoid clogging the Oklahoma courts with telemarketing litigation based upon an unclear autodialer definition. Wouldn’t that be a “beautiful feeling that everything’s going [your] way”?

Stay tuned for more on the state of the Oklahoma legislation and FTSA amendments.