Updating Commercial Telephone Solicitation Laws: Washington Joins the Race

In response to a 2022 U.S. Supreme Court opinion making it difficult for plaintiffs to bring a claim under the Telephone Consumer Protection Act (TCPA), several states updated their telemarketing restrictions. Washington is the latest state to tighten rules on telemarketing calls. Every business that solicits customers by telephone should update its processes to comply with the new state-level obligations.

Signed into law on March 30, 2022, and effective since June 9, 2022, House Bill (H.B.) 1497 updates the definition of "telephone solicitation," tightens the restrictions on calls that request a donation or gift, and broadens the scope of do-not-call requests. It applies only to unsolicited telephone solicitations. Thus, it does not cover any calls made in response to an inquiry, calls made by an entity to its members, or calls by a business to another business.

H.B. 1497 expands the definition of "telephone solicitation." Rather than covering only unsolicited telephone calls to a residential telephone customer, H.B. 1497 covers unsolicited calls to any person. The new definition therefore includes calls made to cell phones and individuals who are not the phone number's account holder.

The law imposes new obligations on telephone solicitors. First, it requires those who perform solicitation to explicitly ask if the consumer wants to (a) continue the call, (b) end the call, or (c) be removed from the solicitor's telephone directory. The caller must end the phone call within ten seconds if requested by the called party. Second, telephone solicitors cannot call a party after 8:00 p.m. at the receiver's location. Finally, telephone solicitors must identify themselves to the consumers by disclosing the purpose of the call and the company's name on whose behalf the solicitation is being made. Such disclosure must take place within the first 30 seconds of the call.

Additionally, the new law provides consumers with certain rights. At any time during the call, the called party can state or indicate that they (a) do not want to be contacted again by the telephone solicitor or (b) want to have their name, individual telephone number, or other contact information removed from the telephone lists. This would obligate the telephone solicitor to remove the requested information and inform the individual that their contact information will be removed from the call lists for at least one year. The telephone solicitor must end the call within 10 seconds and proceed by removing all contact information associated with the called individual from its call lists, not just the phone numbers. Solicitors cannot sell or disclose in any way the individual's contact information to a third party.

H.B. 1497 broadens the scope of do-not-call requests. Under prior Washington law, callers could not call a number for one year after receiving a do-not-call request. The updated law prohibits calls for a period of one year to any telephone number "associated with" a party who made the do-not-call request. Although the law does not define when a telephone number is "associated with" a person, businesses should track their records to determine if multiple phone numbers are linked to a single individual.

Other states like Florida that tightened the restrictions on telephone solicitation saw an increase in litigation under the revised state telemarketing statutes. Like the laws in these states, the Washington law provides plaintiffs with new avenues for bringing their claims. Failing to comply with H.B. 1497 can expose your family business to litigation and civil damages between $100 and $2,000 per violation, attorneys' fees, and other costs.