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Oklahoma: Telephone Solicitation Act - what you need to know

On 20 May 2022, the Oklahoma Governor signed into law House Bill ('HB') 3168 for the Oklahoma Telephone Solicitation Act ('the Act'). The Act sets out telephone solicitation restrictions by prohibiting, among others, certain telephonic sales calls without the prior express written consent of the called party, and prohibiting the ability of commercial telephone sellers or salespersons to use technology to conceal their real identity. The Act will enter into effect on 1 November 2022. In this article, OneTrust DataGuidance Research highlights some of its key provisions and considerations for affected businesses.

diephosi / Signature collection / istockphoto.com

Scope of application

The Act applies to 'commercial telephone seller or salesperson' making a 'commercial telephone solicitation call', and any person making commercial telephonic sales calls involving 'an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called'. However, while the Act provides some definitions (for example of 'called party', 'caller identification service', 'prior express written consent', and 'signature'), terms like the ones referred to above are left undefined..

The Act also details what is outside its scope of application, listing 26 exemptions in total. Specifically, the Act does not apply to, among other things, the following:

  • 'engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not conducted in the course of a pattern of repeated transactions of like nature';
  • 'soliciting for religious, charitable, political, or educational purposes';
  • 'licensed securities, commodities, or investment broker, dealer, or investment adviser when soliciting within the scope of their license, or a licensed associated person of a securities, commodities, or investment broker, dealer, or investment adviser when soliciting within the scope of their license';
  • a person 'primarily soliciting the sale of a newspaper of general circulation';
  • a person 'who solicits sales by periodically publishing and delivering a catalog of the seller's merchandise to prospective purchasers', if the catalog has certain characteristics and has an annual circulation by mailing above a certain threshold;
  • a person 'who solicits contracts for the maintenance or repair of goods previously purchased from the person making the solicitation or on whose behalf the solicitation is made';
  • a person 'soliciting business from prospective consumers who have an existing business relationship'; and
  • a commercial telephone seller.

Prohibitions provided for by the Act

There are two main areas where the Act establishes prohibitions:

  • rules on consent that must be obtained from called parties; and
  • call restrictions in general, even to consumers who have given prior consent to being called.

With respect to the role of consent, the Act prohibits making, or knowingly allowing to be made, a commercial telephonic sales call without the prior express written consent of the called party, if such call involves:

  • an automated system for the selection or dialling of telephone numbers; or
  • the playing of a recorded message when a connection is completed to the called number.

As regards consent to be obtained from the called party:

  • it must be a written agreement, which:
    • is signed by the called party;
    • includes the telephone number to which the signatory authorises a commercial telephonic sales call to be delivered; and
    • includes a clear and conspicuous disclosure informing the called party about the placement of a commercial telephonic sales call, and that they are not required to sign the written agreement, directly or indirectly, or to agree to enter into such an agreement as a condition of purchasing any property, good, or service; and
  • the called party must clearly authorise the person making or allowing the commercial telephonic sales call by telephone call, text message, or voicemail transmission, to deliver, or cause to be delivered, to the same called party:
    • a commercial telephonic sales call using an automated system for the selection or dialling of telephone numbers;
    • the playing of a recorded message when a connection is completed to a number called; or
    • the transmission of a pre-recorded voicemail.

In terms of call restrictions, the Act makes it unlawful for any person making or allowing a commercial telephonic sales call to fail to transmit the originating telephone number and the name of the telephone solicitor to any caller identification service used by the recipient of the commercial telephonic sales call. Pursuant to the Act, a 'caller identification service' is a service allowing a telephone subscriber to have the telephone number and, where available, the name of the calling party transmitted contemporaneously with the telephone call, and displayed on a device in or connected to the subscriber's telephone.

Furthermore, the solicitor must ensure that the telephone number made available through a caller identification service is capable of receiving telephone calls, and must connect the original call recipient, upon calling such number, to the telephone solicitor.

In addition, it is unlawful for any person making or allowing a commercial telephonic sales call to intentionally alter the voice of the caller in an attempt to disguise or conceal their identity in order to defraud, confuse, or financially or otherwise injure the recipient of the commercial telephonic sales call, or in order to obtain from them personal information which may be used in a fraudulent or unlawful manner.

Lastly, the Act includes restrictions to both call volume and times. It is prohibited for any commercial telephone seller or salesperson to make certain types of phone calls, including calls made through automated dialling or recorded messages. In particular, the prohibition relates to:

  • commercial telephone solicitation phone calls made before 8am or after 8pm in the called person's time zone;
  • more than three commercial telephone solicitation phone calls made to a person over a  24-hour period on the same subject matter, regardless of the phone number used to make the call;
  • commercial telephone solicitation calls where the commercial telephone seller or salesperson making the call intentionally acts to prevent transmission of their name or telephone number to the called party, if the equipment or service used by the telephone solicitor can create and transmit their own name or telephone number; and
  • use of technology that deliberately displays a different caller identification number than the number from where the call is originating, to the end of concealing the real identity of the caller.

Enforcement

The Act expressly grants a private right of action to any called party who is aggrieved by a violation of the Act's provisions, entitling them to enforce civil penalties of $500 for each violation or recover actual damages, whichever is greater. Courts may potentially triple such penalties for wilful or knowing violations.

Francesco Saturnino Privacy Analyst
[email protected]