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. 
Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Andrew Longhi Andrew Longhi

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state…

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state, federal, and international data protection laws. He proactively counsels clients on the substantive requirements introduced by new laws and shifting enforcement priorities. In particular, Andrew routinely supports clients in their efforts to launch new products and services that implicate the laws governing the use of data, connected devices, biometrics, and telephone and email marketing.

Andrew assesses privacy and cybersecurity risk as a part of diligence in complex corporate transactions where personal data is a key asset or data processing issues are otherwise material. He also provides guidance on generative AI issues, including privacy, Section 230, age-gating, product liability, and litigation risk, and has drafted standards and guidelines for large-language machine-learning models to follow. Andrew focuses on providing risk-based guidance that can keep pace with evolving legal frameworks.