Telemarketing can be an effective and financially efficient method of finding customers and expanding sales and revenue. However, if you plan to begin a telemarketing campaign, your business must comply with a host of federal and State telemarketing rules and laws. The main federal law is the Telephone Consumer Protection Act — 47 USC § 227 — which focuses on telephone communications initiated by auto-dialing mechanisms and regulates unrequested, unwanted, and harassing calls of a commercial nature to consumers.

At the state level, nearly every state (and the District of Columbia) have created further regulations — mini-TCPAs — that often offer more protections for call recipients. If your business is interested in starting a telemarketing campaign, you will need the legal guidance of an experienced telemarketing law firm like Revision Legal. Call us at 231-714-0100. The best practice is to retain an already-existing telemarketing firm, which will already be compliant — hopefully — with federal and state telemarketing regulations. But, you need experienced telemarketing attorneys to review the contracts and help conduct the necessary due diligence before proceeding. This article briefly reviews some of the legal issues typically found in state-level telemarketing regulations.

In general, state telemarketing regulations tend to be more protective of consumers than the federal TCPA. That is, the telemarketing rules are more restrictive. As an example, in 2021, Florida amended its telemarketing statute to make the regulations applicable to “all persons” engaged in telemarketing, not just telemarketing firms. The Florida amended legislation also requires written consent from the consumer for such calls and mandates the use of internal “do-not-call” lists for telemarketing firms. Several States, such as Oklahoma and Washington, have used the new Florida law as a template for updating their telemarketing legislation.

In addition, state-level telemarketing rules tend to cover a larger category of issues related to telemarketing but without any sort of overall uniformity. Thus, a telemarketing campaign that targets persons in multiple states must comply with the regulations for each state. Examples of the various issue include:

• Application for and issuance of a telemarketing license
• Obtaining a telemarketing bond before calling into or out of given state
• Calling time restrictions based on the time where the call recipient lives
• Certain day restrictions — such as for holidays
• Use of auto-dialing systems
• Use of scripts and pre-recorded messages
• Regulation of voice-mail messages
• Application of telemarketing regulations to text messaging
• Mandatory training requirements for telemarketing employees
• Prohibitions on certain statements by the telemarketer
• Requirements that the telemarketer make certain statements (such as an initial disclosure by the telemarketer that this is a sales call or that the telemarketer seeks permission to continue the call)
• Caller identification rules and regulations
• Do-not-call regulations — including, for example, requirements that telemarketers tell the call recipient that they can demand to be placed on a do-not-call list

Aside from regulations specific to telemarketing activities, there is a wide variation among state laws with respect to enforcement. Most states give consumers a private right of action to file civil litigation in the event of a violation. However, some states give enforcement power to the Attorney General’s Office or other regulatory agencies. Likewise, statutory penalties vary widely from state to state. For example, in Washington state, the statutory penalties that can be recovered are $100 per violation. By contrast, in New York, such penalties can be as high as $11,000 per violation.

For more information, contact the trusted internet and business lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474. We are lawyers specializing in business and internet law.

Federal Telemarketing Law: The TCPA and FTC Act

Before examining state-level regulations, it is important to understand the federal framework that state rules supplement. The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, is the primary federal telemarketing statute. It prohibits the use of automatic telephone dialing systems (ATDS) to call cell phones without prior express consent, restricts calls to residential phones before 8 a.m. or after 9 p.m. local time, requires callers to identify themselves and provide a callback number, and mandates compliance with the national Do Not Call Registry maintained by the Federal Trade Commission. The FTC’s Telemarketing Sales Rule (TSR), 16 C.F.R. Part 310, adds additional requirements, including specific disclosure obligations and prohibitions on deceptive practices.

The TCPA provides a private right of action with statutory damages of $500 per violation and up to $1,500 per willful violation. In the class action context, TCPA liability can reach hundreds of millions of dollars, as demonstrated by cases like Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). Any business that uses automated calls, ringless voicemail drops, or text messages for marketing purposes must have experienced telemarketing counsel review its practices before launch.

State Telemarketing Licensing and Bonding Requirements

More than a dozen states require telemarketing businesses to obtain a license before soliciting residents of that state. The specific requirements vary significantly. Florida requires registration with the Florida Department of Agriculture and Consumer Services and a surety bond of at least $50,000. Michigan requires registration under the Michigan Home Solicitation Sales Act, MCL 445.111, for certain types of telephone solicitations. Texas requires registration with the Texas Secretary of State and also mandates a performance bond.

For businesses that operate multi-state telemarketing campaigns, the compliance burden can be substantial. Each state with a licensing requirement has its own application process, fee schedule, bond amount, and renewal timeline. An experienced telemarketing attorney can help you identify which states require registration for your specific type of calling activity, obtain the required licenses and bonds, and maintain compliance through annual renewals — avoiding the significant fines that regulators can impose for operating without required registration.

Consent Standards and Text Message Marketing

Both the TCPA and state mini-TCPA laws have specific consent requirements that are increasingly being applied to text message marketing. The FCC’s 2023 one-to-one consent rules require that express written consent for ATDS-generated or prerecorded calls and texts be obtained specifically for the company making the call — not broadly obtained consent that is then shared or sold to multiple marketers. This “lead generator” loophole that many companies relied on has been narrowed significantly.

Florida’s 2021 amendments to its Telemarketing Act are illustrative of the direction state law is heading. The Florida law requires “prior express written consent” for automated calls and texts, creates a private right of action with statutory damages of $500 per call, and allows trebling of damages for willful violations. Several other states have enacted or are considering similar consumer-protective amendments. A telemarketing attorney can audit your current consent collection procedures, update your opt-in language and documentation practices, and help ensure that your lead generation and marketing campaigns satisfy both federal and applicable state consent standards.