The FCC and TCPA specifically prohibit autodialed calls and texts to wireless phones without prior consent ("express" for non-marketing and "written" for marketing). Some courts have also treated VoIP lines similar to wireless lines under the TCPA and held marketers liable for autodialing VoIP Lines where the recipient was charged for the call. Regardless whether the company uses an autodialer though, five states have more restrictive cell phone laws that prohibit telemarketing calls to wireless phones, even when calling manually. These states include Arizona, Louisiana, New Jersey, Texas and Wyoming.
Title 44, Chapter 9, Article 6 of the Arizona Revised Statutes contains many elements of Arizona's regulation of the telemarketing industry. If we zero in on § 44-1278, we discover the following:
“It is an unlawful practice . . . for any seller or solicitor or anyone acting on their behalf who conducts a telephone solicitation in this state to do any of the following: . . . Intentionally make or cause to be made any unsolicited telephone sales call to any mobile or telephone paging device.”
Note that the restriction in the Arizona Statute specifically applies to an “unsolicited telephone sales call”, regardless of how the call is delivered. The question then is, if you have the appropriate “express written consent”, would it no longer be an unsolicited call? This of course, depends on how you obtained the consent, and what exactly the call recipient consented to.
Similarly, Title 56, Chapter 8 of the New Jersey Statutes covers "Frauds, etc. in Sales or Advertisements or Merchandise." § 56:8-130 of this chapter contains the following:
“No telemarketer shall make or cause to be made any telemarketing sales call to a commercial mobile service device of any customer . . .”
There does not appear to be any way around this prohibition, even for manual dialing, unless you are making a call that does not meet the definition of a “telemarketing sales call”.
Turning our attention now to Texas statutes, we find, in Title 10, Chapter 305, § 305.001, the following prohibition:
“A person may not make a telephone call or use an automatic dial announcing device to make a telephone call for the purpose of making a sale if: (1) the person making the call or using the device knows or should have known that the called number is a mobile telephone for which the called person will be charged for that specific call; and (2) the called person has not consented to the making of such a call to the person calling or using the device or to the business enterprise for which the person is calling or using the device.”
If you have obtained the necessary “express written consent” to call the individual using automated technology under the TCPA, you would most likely be exempt from this restriction. If you don’t have the appropriate consent, you should avoid calling Texas mobile telephone numbers, even if you are manually dialing.
Likewise, under Title 40, Chapter 12, Article 3, § 40-12-302 of the Wyoming Statutes, we find:
“No telephone solicitor or merchant shall willfully make or cause to be made any unsolicited telephonic sales call to any unpublished cellular telephone number.”
Here again, the restriction applies to an “unsolicited telephonic sales call”, and only prohibits calls to “unpublished cellular telephone numbers”. Wyoming defines both of these terms in § 40-12-301.
The Louisiana rule is a little more difficult to find, but it's there nonetheless, in the Louisiana Public Service Commission's Do Not Call Program General Order:
“No call will be placed to . . . any telephone number assigned to a paging service, cellular or mobile telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless the call is made pursuant to the recipient's prior express consent.”
Louisiana does not define what prior express consent means, but “express written consent” under the TCPA would certainly qualify.
What's the simple solution to comply? Marketers who want to call cell phones should either refrain from calling wireless phones in the above 5 states, or should ensure they always have
prior written consent before calling (or at least an EBR in Wyoming). Remember also that having such written consent will not only allow you to comply with these state laws, but would also allow you to use an autodial under the TCPA. Same is true for both cell and VoIP lines.
Bottom line = consent is the key to both the state and federal wireless (and VoIP) rules.
