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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3168 By: Phillips of the House
and
Leewright of the Senate
AS INTRODUCED
An Act relating to telephone solicitation; creating
the Telephone Solicitation Act of 2022; defining
terms; prohibiting certain telephonic sales calls
without the prior express written consent of the
called party; prohibiting commercial telephone
sellers or salespersons from using certain technology
to conceal their true identity; providing a
rebuttable presumption for certain calls made to any
area code in this state; prohibiting a commercial
telephone seller or salesperson from using automated
dialing or recorded messages to make certain
commercial telephone solicitation phone calls;
providing the timeframe during which a commercial
telephone seller or salesperson may make commercial
solicitation phone calls; prohibiting commercial
telephone sellers or salespersons from making a
specified number of commercial telephone solicitati on
phone calls to a person over a specified tim eframe;
exempting certain persons; providing a cause of
action for aggrieved called parties; authorizing a
court to increase an award for willful and knowing
violations; providing for codification; and providing
an effective date.
BE IT ENACTED BY THE PEOPL E OF THE STATE OF OKLAHOMA:
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SECTION 1. NEW LAW A ne w section of law to be codified
in the Oklahoma Statutes as Section 775C.1 of Title 15, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the "Telephone
Solicitation Act of 2022".
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 775C.2 of Title 15, unless there
is created a duplication in numbering, reads as follows:
As used in the Telephone Solic itation Act of 2022:
1. "Called party" means a person who is the regular user of the
telephone number that receives a telephonic sales cal l;
2. "Caller identification service " means a service that allows
a telephone subscriber to have the telephone number and, where
available, the name of the ca lling party transmitted
contemporaneously with the telephone call and displayed on a device
in or connected to the subscriber 's telephone;
3. "Prior express written consen t" means a written agreement
that:
a. bears the signature of the called part y,
b. clearly authorizes the person making or allowing the
placement of a telephonic sales call by teleph one
call, text message, or voicemail transmission to
deliver or cause to be delivered to the calle d party a
telephonic sales call using an automated system for
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the selection or dialing of telephone numbers, the
playing of a recorded message when a connecti on is
completed to a number called, or the transmission of a
prerecorded voicemail,
c. includes the telephone number to which the signatory
authorizes a telephonic sales call to be delivered ,
and
d. includes a clear and conspicuous disclosure informing
the called party that:
(1) by executing the agreement, the called party
authorizes the person making or allowing the
placement of a telephonic sales call to deliver
or cause to be delivered a telephonic sales call
to the called party using an automated system for
the selection or dialing of telephone numbers or
the playing of a recorded message when a
connection is complete d to a number called, and
(2) he or she is 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, goods, or services; and
4. "Signature" includes an electron ic or digital signature, to
the extent that such form of signature is recognized as a valid
signature under applicable federal law or state contract law.
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SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statute s as Section 775C.3 of Title 15, unless there
is created a duplication in numbering, reads as follows:
A. A person may not make or knowingly allow a telephonic sales
call to be made if such call involves 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
without the prior express written consent of the called party.
B. It shall be unlawful for any person who m akes a telephonic
sales call or causes a t elephonic sales call to be made to fail to
transmit or cause not to be transmitted the originating telephone
number and, when made availabl e by the telephone solicitor's
carrier, the name of the telephone solicitor to any caller
identification service in u se by a recipient of a telephonic sales
call. However, it is not a violation to substitute, for the name
and telephone number used in or billed for making the call, the name
of the seller on behalf of which a tele phonic sales call is place d
and the seller's customer service telephone number, which i s
answered during regular business hours. If a telephone number is
made available through a c aller identification service as a result
of a telephonic sales call, the so licitor must ensure that telephone
number is capable of receiving telephone calls and must connect the
original call recipient, upon calling such number, to the telephone
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solicitor or to the seller on behalf of which a telephonic sales
call was placed.
C. It shall be unlawful for any person who m akes a telephonic
sales call or causes a tele phonic sales call to be made to
intentionally alter the voice of th e caller in an attempt to
disguise or conceal the identity of the caller in order to defraud,
confuse, or financially or otherwise injure the recipient of a
telephonic sales call or in orde r to obtain personal information
from the recipient of a telephonic sales call, which may be used in
a fraudulent or unlawful manner.
D. There is a rebuttable presumpti on that a telephonic sales
call made to any area code in this state is made to a n Oklahoma
resident or to a person in this state a t the time of the call.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statute s as Section 775C.4 of Title 15, unless there
is created a duplication in numbering, rea ds as follows:
A. A commercial telephone seller or salesperson may not make
any of the following types of phone calls, including calls made
through automated dialing o r recorded messages:
1. A commercial telephone solicitation phone call before 8 a.m.
or after 8 p.m. local time in the called person 's time zone; and
2. More than three commercial telephone solicitation phone
calls from any number to a person over a twenty-four-hour period on
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the same subject matter or issue, regardless of the phone number
used to make the call.
B. A commercial telephone seller or salesperson making a
commercial telephone solicitation call may not:
1. Intentionally act to prevent transm ission of the telephone
solicitor's name or telephone number to the party called when the
equipment or service used by the telephone solicitor is capable of
creating and transmittin g the telephone solicitor's name or
telephone number; or
2. Use technology that deliberately displays a different caller
identification number than the number from where the call is
originating to conceal the true identity of the caller.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 775C.5 of Title 15, unless there
is created a duplication in numbering, reads as follows :
Exempt from this act are the following:
1. A person engaging in com mercial telephone solicitation where
the solicitation is an isolated t ransaction and not done in the
course of a pattern of r epeated transactions of like nature;
2. A person soliciting for religious, charitable, political, or
educational purposes. A person soliciting for other noncommercial
purposes is exempt only if that person is soliciting for a nonprofit
organization and if that organization is properly registered as such
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with the Secretary of State and is included within the exemption of
Section 501(c)(3) or (6) of the Internal Revenue Code ;
3. A person who does not m ake the major sales presentation
during the telephone sol icitation and who does not intend to, and
does not actually, compl ete or obtain provisional acceptance of a
sale during the telep hone solicitation, but who makes the major
sales presentation and comp letes the sale at a later face-to-face
meeting between the sell er and the prospective purchaser . However,
if a seller, directly following a telephone solicitation, causes an
individual whose primary purpose is to go to the prospective
purchaser to collect the payment or deliver any item purchased, this
exemption does not apply;
4. A licensed securities, commodities, or in vestment broker,
dealer, or investment adviser when soliciting within the scope of
his or her license, or a licensed associated person of a securities,
commodities, or investment broker, dealer, or investment adviser
when soliciting within the scope of h is or her license. As used in
this section, "licensed securities, commodities, or investment
broker, dealer, or investment adviser" means a person subject to
license or registration by the Securities and Exchange Commission,
by the Financial Industry Regulatory Authority or other self -
regulatory organization as defined by the Securities Exchange Act of
1934, 15 U.S.C., Section 78l, or by an official or agency of this
state or of any state of the United States. As used in this
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section, "licensed associated person of a securities, commodities,
or investment broker, dealer, or investment adviser " means an
associated person registered or licens ed by the Financial Industry
Regulatory Authority or other self-regulatory organization as
defined by the Securities Exchange Act of 1934, 15 U.S.C., Section
78l, or by an official or ag ency of this state or of any state of
the United States;
5. A person primarily soliciting the sale of a newspaper of
general circulation;
6. A book, video, or record club or contractual plan or
arrangement:
a. under which the seller provides the consumer with a
form which the consumer may use to instruct the seller
not to ship the offered merchandise,
b. which is regulated by the Trade Regulation Rule
regarding the Use of Negative Option Plans by Sellers
in Commerce, and
c. which provides for the sale of books, records, or
videos which are not covered under subparagraph a or b
of this paragraph, including continuity plans,
subscription arrangements, standing order
arrangements, supplements, and series arrangements
under which the seller periodically ships merchandise
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to a consumer who has consented in advance to receive
such merchandise on a periodic basis;
7. A supervised financial institution or parent, subsidiary, or
affiliate thereof op erating within the scope of supervised activity.
As used in this section, "supervised financial institution " means a
commercial bank, trust company, savings and loan associ ation, mutual
savings bank, credit union, industrial loan company, consumer
finance lender, commercial finance lender, or insurer ; provided that
the institution is subject to supervision by an official or agency
of this state, of any state, or of the Unite d States. For the
purposes of this exemption, "affiliate" means a person who direct ly,
or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, a supervised
financial institution;
8. Any licensed insurance broker, agent, customer
representative, or solicitor when soliciting within the scope of his
or her license. As used in this section, "licensed insurance
broker, agent, customer representative, or solicitor " means any
insurance broker, agent, c ustomer representative, or solicitor
licensed by an official or agency of this state or of any state of
the United States;
9. A person soliciting the sa le of services provided by a cable
television system operating under a uthority of a franchise or
permit;
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10. A business-to-business sale where:
a. the commercial telephone seller has been l awfully
operating continuously for at least three (3) years
under the same business name and has at least fifty
percent (50%) of its dollar volume consisting of
repeat sales to existing businesses ,
b. the purchaser business intends to resell or offer for
purposes of advertisement or as a promotional item the
property or goods purchased, or
c. the purchaser business intends to use the prope rty or
goods purchased in a recyclin g, reuse,
remanufacturing, or manufacturing process ;
11. A person who solicits sales by periodicall y publishing and
delivering a catalog of the selle r's merchandise to prospective
purchasers, if the catalog:
a. contains a written description or illustrati on of each
item offered for sale ,
b. includes the business address or home office address
of the seller,
c. includes at least twenty (20) pages of written
material and illustrations and is distributed in more
than one state, or
d. has an annual circulation by mail ing of not less than
one hundred fifty thousand (150,000);
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12. A person who solicits contracts for the maintenance or
repair of goods previously purchased from the person making the
solicitation or on whose beha lf the solicitation is made;
13. A commercial telepho ne seller;
14. A telephone company subject to Title 17 of the Oklahoma
Statutes, or affiliate thereof or its agents, or a
telecommunications business that is regulated by the Oklahoma
Corporation Commission, or a cellular telephone company licensed by
the Federal Communications Commission or other bona fide radio
telecommunication services provider. For the purposes of this
exemption, "affiliate" means a person who directly, or indirectly
through one or more intermediaries, controls or is controlled by, or
is under common control with, a telepho ne company subject to Title
17 of the Oklahoma Statutes;
15. A person who is licensed pursuant to the Funeral Services
Licensing Act in Title 59 of the Oklahoma Statutes and who is
soliciting within the scope of the licen se;
16. An issuer or a subsidiary of an issuer that has a class of
securities which is subject to Section 12 of the Securities Exchange
Act of 1934, 15 U.S.C. , Section 78l, and which is either registered
or exempt from registration under subparagraph (a), subparagraph
(b), subparagraph (c), subparagraph (e), subparagraph (f),
subparagraph (g), or subparagraph (h) of subsection (G) of paragraph
(2) of that section;
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17. A business soliciting exclu sively the sale of telephone
answering services; provided that the telephone answering services
will be supplied by the solicitor ;
18. A person soliciting a transaction regulated by the
Commodity Futures Trading Commission if the person is registered or
temporarily licensed for this activity with the Commodi ty Futures
Trading Commission under the Com modity Exchange Act, 7 U.S.C.,
Section 1 et seq., and the registration or license has not expired
or been suspended or revoked ;
19. A person soliciting the sa le of food, food product, food
ingredient, dietary ingredien t, dietary supplement, or beverage for
human consumption, if the solicitation neither intends to result in,
or actually results in, a sale which costs the purchaser in excess
of Five Hundred Dollars ($500.00);
20. A person soliciting business from prospective consumers who
have an existing business relationship with or who have previously
purchased from the business enterprise f or which the solicitor is
calling if the solicitor is operating under the same exact business
name;
21. A person who has been operating, for at least one (1) year,
a retail business establishment under the same name as that used in
connection with telemar keting and both of the following occur on a
continuing basis:
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a. either products are displayed and offered for sale or
services are offered for sale and provided at the
business establishment, and
b. a majority of the seller 's business involves the buyer
obtaining such products or services at the seller 's
location;
22. Any person who has been lawfully providing telemarketing
sales services continuously for at least five (5) years under the
same ownership and control and who derives seventy-five percent
(75%) of its gross telemarketing sales revenues from contracts with
persons exempted in this section;
23. A person licensed pursuant to The Oklahoma Real Estate
License Code in Title 59 of the Oklahoma Statutes, soliciting within
the scope of the license;
24. A publisher, or an agent of a publisher by written
agreement, who solicits the sale of his or her periodical or
magazine of general, paid circulation. The term "paid circulation"
shall not include magazines that are only circulated as part of a
membership package or that are given as a free gift or prize from
the publisher or agent of the publisher by written agreement ;
25. A person who is licensed or certified to handle pesticides
under Section 3-82 of Title 2 of the Oklahoma Statutes ; and
26. A licensee, or an affiliate of a licensee, regulated under
Title 6 of the Oklahoma Statutes.
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SECTION 6. NEW LAW A ne w section of law to be codified
in the Oklahoma Statutes as Section 775C.6 of Title 15, unless there
is created a duplication in numbering, reads as follows:
A. A called party who is aggrieve d by a violation of this act
may bring an action to:
1. Enjoin such violation; and
2. Recover actual damages or Five Hundred Dollars ($ 500.00),
whichever is greater.
B. If the court finds that the defendant willfully or knowingly
violated this act or rules adopted pursuant to this act, the court
may, in its discretion, increase the amount of the award to an
amount equal to not more than three times the amount available under
subsection A of this section.
SECTION 7. This act shall become effective November 1, 2022.
COMMITTEE REPORT BY: COMMITTEE ON TECHNOLOGY, dated 02/16/2022 - DO
PASS, As Coauthored.