When Evaluating Outbound Calling Risk Don’t Forget State Law


Over the past year, we have emphasized the role of the Federal Communications Commission (“FCC”) and private plaintiffs in enforcing the Telephone Consumer Protection Act (“TCPA”) and addressed the FCC’s evolving and expanding interpretation of the TCPA. However, it is important for businesses to keep in mind that state officials also play a role in enforcing the TCPA and other laws limiting unsolicited telephone calls.

A state attorney general typically has two options for cracking down on unwanted phone calls or text messages to residents of a state: enforce the TCPA or take action under a state law. In addition to permitting the FCC to take enforcement action or private plaintiffs to sue, the TCPA empowers a state attorney general, “or an official or agency designated by a state,” to bring a civil action against any party that “has engaged or is engaging in a pattern or practice of telephone calls or other transmission to residents of that state in violation of [the TCPA].” For example, the Missouri Attorney General recently filed a lawsuit against Charter Communications alleging that the company violated the TCPA, the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule (“TSR”), and Missouri’s do-not-call law. The lawsuit seeks civil damages and an injunction barring Charter from making future calls that violate the laws.

As the Missouri Attorney General’s complaint illustrates, many states also have laws mirroring the TCPA and the federal do-not-call list. State laws regarding unsolicited calls generally fall into two categories. First, most states have laws establishing state do-not-call lists and prohibiting unsolicited calls to numbers on the lists, subject to limited exceptions. These state do-not-call laws compliment and expand the enforcement reach of the TCPA and the federal do-not-call list. One important difference between the TCPA and state do-not-call lists is that many state laws do not rely on the definitions established by the TCPA or other federal regulations, so it is important to consult experienced telecommunications counsel to understand the scope of state do-not-call laws prior to calling residents in a particular state.

A second category of state laws, generally applicable specifically to telemarketing calls, involves restrictions on who may operate a telemarketing calling center in a state. Currently, more than 30 states, including CaliforniaFloridaNew York, and Texas, and the District of Columbia require operators of telemarketing calling centers to register with the state. A few states, including Florida, also require individual telephone sales agents to be licensed by the state. Again, definitions of telemarketing vary slightly from state to state and are not always the same as the definitions used by the FCC and FTC.  Because of the different state legal requirements, a company or individual should seek counsel during the process of determining where to locate a calling center.

Finally, almost half of the states and the District of Columbia require telemarketers operating in their jurisdiction to post a bond. Among states that require a bond, Texas is at the low end of the spectrum, requiring a $10,000 bond. California and Arizona, on the other hand, require telemarketers to post $100,000 bonds. West Virginia requires telemarketers to post a $100,000 bond for each telemarketing location in the state or a $500,000 bond for all of the telemarketing locations in the state.

If you have any questions about whether or how state do-not-call and telemarketing laws impact your business, please contact Seth Williams at slw@commlawgroup.com or Nate Hardy at njh@commlawgroup.com.

ATTORNEY ADVERTISING DISCLAIMER: This information may be considered advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers

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