This blog post summarizes recent telemarketing developments emerging from Arizona, Washington, and Maryland.  Arizona recently amended its state telemarketing law to include a new text message restriction.  Washington and Maryland may soon enact more significant updates of their telemarketing laws, including with respect to automated transmissions.  The proposed new law in Maryland is particularly notable, as it seeks to impose the same sort of consent requirements on automated marketing calls and texts that exist now in Florida and Oklahoma.

Arizona

On April 12, Arizona Governor Katie Hobbs signed into law HB 2498, which amended the state’s existing “do not call” law to prohibit sellers and solicitors from, in the absence of consent, employment agreement, or a personal relationship from transmitting text message solicitations to telephone numbers on the National Do Not Call Registry.  The state attorney general is empowered to investigate and fine alleged violators up to $1,000 per violation.

Washington

On April 5, the Washington Senate unanimously approved the Robocall Scam Protection Act after the House unanimously passed the bill on February 27.  The bill currently is awaiting action by the governor.  If enacted, the bill would do the following:

• “Automatic Dialing and Announcing Device” Restriction.  The bill would prohibit commercial solicitations using an “automatic dialing and announcing device,” which it defines as “a system which automatically dials telephone numbers and transmits a recorded or artificial voice message once a connection is made,” including if the message “goes directly to a recipient’s voicemail.”  Commercial solicitations are defined as “the unsolicited initiation of a telephone communication made for the purpose of encouraging a person to purchase property, goods, or services, or wrongfully obtaining anything of value.”

• “Assist in the Transmission” Prohibition.  The bill would prohibit “assisting in the transmission” of commercial solicitations made with an automatic dialing and announcing device.  It would provide a few affirmative defenses for telecommunications providers, including that they implemented “a reasonably effective plan to mitigate origination, initiation, or transmission” of the solicitations.

The bill defines the term “assist in the transmission” to mean “actions taken to provide substantial assistance or support, which enables any person to formulate, originate, initiate, or transmit a commercial solicitation when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial solicitation is engaged, or intends to engage, in any practice that violates” the state consumer protection law.  The bill provides a few exemptions to this definition, including with respect to the services of “terminating providers,” defined as “telecommunications provider[s] that provide[] voice services to an end user customer.”

• Private Right of Action.  The bill creates a private right of action to seek injunctive relief and recover actual damages or $1,000 dollars, whichever is greater, for each violation of the “assist in the transmission” prohibition.

• Additional Restrictions:  The bill prohibits telephone solicitations to telephone numbers on the National Do Not Call Registry and knowingly causing any caller ID service to transmit misleading, inaccurate, or false caller identification information.  Violations of these restrictions would be subject to a fine of up to $1,000 per violation.

Maryland

On March 31, the Maryland Senate unanimously approved the Stop the Spam Calls Act of 2023, which the House previously passed by unanimous vote on March 10.  After the House considers the bill a second time, which is expected, it will go to the governor’s desk for signature.  If signed into law, the bill would take effect on January 1, 2024.

• Automated System and Recorded Message Restrictions.  This bill prohibits telephone solicitations that involve (1) “an automated system for the selection of dialing telephone numbers” or (2) “the playing of a recorded message when connection is completed to the number called” without first obtaining “prior express written consent.”  The bill broadly defines “telephone solicitations” to be “an organized activity, program, or campaign to communicate by telephone with residents of Maryland,” including, among other things, to “sell, lease, or rent goods or services.”  The bill does not further define “automated systems for the selection of dialing telephone numbers.”

• Prior Express Written Consent.  The bill defines “prior express written consent” to be a “written agreement” that (1) contains the called party’s signature; (2) authorizes the telephone solicitation to be delivered “by telephone call, text message, or voicemail;” (3) provides the telephone number authorized for the solicitation; and (4) includes a “clear and conspicuous disclosure” informing the called party that they are authorizing a telephone solicitation using an automated system or the playing of a recorded message.

• Intentionally Concealing Caller Identity.  The bill prohibits (1) intentionally preventing the transmission of the telephone solicitor’s name or telephone number when the equipment or service used by the solicitor is capable of sharing such information and (2) using technology that deliberately displays a different caller identification number in order to conceal the caller’s identity, subject to certain exemptions (such as providing a customer service number).

• Other Restrictions.  Other restrictions include prohibiting (1) telephone solicitations between the hours of 8:00 P.M. and 8:00 A.M. and (2) calling the same number more than three times in a 24-hour period on the same subject matter or issue.

• Rebuttable Presumption.  The bill creates a rebuttable presumption that telephone solicitations made to Maryland area codes are to Maryland residents.

• Enforcement.  Violations constitute unfair or deceptive trade practices, which authorize enforcement actions by Maryland state officials.  An unfair or deceptive trade practice constitutes a misdemeanor, which is punishable by a fine of up to $1,000 or one years’ imprisonment or both.  Injunctive relief or civil damages also may be awarded.