New Oklahoma Telephone Solicitation Act Is Not OK – But It Does Contain an Important Exemption

Late last week, Oklahoma Governor Kevin Stitt signed the state’s Telephone Solicitation Act of 2022 (OTSA) into law.

A couple of months ago, as the legislation was working its way through the Oklahoma state legislature, we noted that, like its Florida counterpart – the Florida Telephone Solicitation Act (FTSA) – the law would prohibit “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 OTSA maintains the above-identified autodialer prohibition but, like the FTSA, fails to define what an “automated system for the selection or dialing of telephone numbers” actually is. And, just as with the Florida law, the Oklahoma statute creates a rebuttable presumption that any call or text message to a phone number with an Oklahoma area code is made to an Oklahoma resident or person physically present in the state at the time of receipt. The statute allows for private enforcement and provides for uncapped statutory damages of $500 per violation (potentially tripled if the violation is deemed to be willful or knowing). The law goes into effect on November 1, 2022, likely triggering waves of autodialer litigation.

While the OTSA’s autodialer provision is (rightfully) garnering the most attention, the statute contains several other restrictions that telemarketers should be aware of. For example:

• The OTSA imposes more restrictive call time restrictions than the federal Telephone Consumer Protection Act (TCPA). Specifically, no marketing telecommunications may be made to consumers physically present in Oklahoma before 8:00 am or after 8:00 pm local time in the called person’s time zone. The TCPA allows unsolicited telemarketing calls and marketing text messages to be placed/sent between 8:00 am and 9:00 pm local time.
• The OTSA limits telemarketing efforts to three calls to consumers physically present in Oklahoma per 24 hours.

However, in what is perhaps the most significant outcome of the new law, the OTSA specifically exempts, among others, “[a] person 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 business enterprise.” In other words, if there is an established business relationship between the seller and consumer, telemarketing communications to that consumer are not subject to the OTSA or its general autodialer prohibition. It bears noting, however, that an exemption existing under the OTSA may not similarly exist under the TCPA.

Nonetheless, as Rodgers and Hammerstein fans will understand, maybe Oklahoma is “OK” after all. It just may be that the OTSA is not that “grand.”

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