Advertising Law Alerts

September 30th, 2014

Get Ready for New Telemarketing Rules

Here's some news for agencies and brands that market via phone to consumers in Connecticut: On October 1, 2014, Connecticut's new telemarketing law goes into effect. The new law significantly expands Connecticut's existing "do not call" law and arguably departs from the federal Telephone Consumer Protection Act of 1991 and its accompanying rules (the "TCPA"). Here are some important points to consider:

Broader coverage?

Remember that the TCPA requires marketers to obtain prior express written consent for telephone calls or texts made using an automatic telephone dialing system or an artificial or prerecorded voice that includes or introduces an advertisement or constitutes "telemarketing." While Connecticut similarly prohibits telemarketers from making automatically dialed telephonic sales calls without the prior express written consent of a consumer, the definition of a "telephonic sales" call is arguably broader under the Connecticut law than under its federal counterpart. Specifically, Connecticut's new law covers not only phone calls and SMS or MMS messages, but also "text or media messages." A "text or media message" is defined as "a message that contains written, audio, video or photographic content and is sent electronically to a mobile telephone or mobile electronic device telephone number..." It does not include email sent to an email address. It is, as yet, unclear whether Connecticut legislators intended to reach a broader category of messages than the TCPA with this additional language.

Covered equipment

Numerous federal cases have grappled with whether certain equipment used by telemarketers to send messages and make phone calls qualifies as an "automatic telephone dialing system" ("ATDS") under the TCPA. (Under the TCPA, an ATDS is a piece of equipment that has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.) While the Connecticut law uses the term "automatically dialed" calls, the term "automatically dialed" is not defined in the language of the Connecticut statute, making it unclear whether the evolving federal case law involving ATDSs would be instructive in complying with the Connecticut law.

Penalties

Penalties under Connecticut's new law are substantial. Connecticut may fine marketers up to $20,000 for each violation of its provisions. The statute is silent on whether each individual message or voice call could be considered a separate violation. Significantly, the new law also allows individuals to sue for violations.

Exemptions

The new Connecticut law also provides exemptions in some cases for calls or messages sent "to an existing customer." If applicable, this exemption could provide more leeway to a marketer than is currently available under the TCPA, which generally applies regardless of whether a marketer and consumer have an existing business relationship or the consumer is an "existing customer."

Companies that market or advertise in Connecticut by phone should pay close attention to the requirements of this new law, and watch for enforcement actions or public statements clarifying the new requirements. If you have any questions about the Connecticut law, or other advertising law issues, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, Brian Murphy at (212) 826 5577 or bmurphy@fkks.com, Hannah Taylor at (212) 705 4849 or htaylor@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.