A rising record of states are strengthening their telemarketing legal guidelines partly resulting from a Supreme Courtroom ruling, Fb v. Duguid, that in 2021 considerably narrowed the definition of an automated phone dialing system, also referred to as an ATDS or auto-dialer, below the Phone Shopper Safety Act.
The TCPA prohibits the use of auto-dialers to contact shoppers with out their consent, the regulation agency Eversheds Sutherland defined. When the court docket narrowed the federal definition, some states took issues into their very own fingers. Others expanded their legal guidelines to cowl texting.
“Most of the new and amended state legal guidelines have broader definitions of ATDS than does the TCPA, and lots of states impose different distinctive restrictions for speaking through cellphone and textual content,” the regulation agency Eversheds Sutherland wrote in a latest alert.
Plaintiffs can deliver claims below many of those legal guidelines along with, or at the side of, claims below the TCPA, based on Eversheds.
Finest Practices for Advisor Communication
Lewis Wiener, associate at Eversheds, stated that brokers and advisors ought to “observe finest practices” when calling prospects. “Know who you’re calling,” Wiener stated, and “know whether or not you’re calling a landline or cellular phone. If there’s any doubt, assume you’re calling a cellular phone.”
The TCPA, Wiener continued, “was designed to restrict, by means of the consent requirement, the power of telemarketers to name individuals on their cell telephones. Since landlines have been billed in another way — and customarily a lot decrease — the restrictions on calls to landlines aren’t as stringent.”
Additionally, “scrub your numbers in opposition to the federal, state, and company-specific Do Not Name lists and get consent upfront,” Wiener suggested.
SEC Advertising Rule
Issa Hanna, associate at Eversheds, added Monday in an e-mail that funding advisors not solely threat working afoul of state legal guidelines but additionally violating the Securities and Trade Fee’s Advertising Rule when telemarketing their providers.
“Whereas oral communications are typically excepted from the primary prong of the definition of ‘commercial,’ there’s an exception to that exception for advisors’ scripted oral communications that embody presents of advisory providers,” Hanna stated.
Furthermore, Hanna continued, “oral communications that qualify as compensated endorsements or testimonials are additionally throughout the scope” of the SEC’s advertising rule.
Additional, “textual content messages that embody presents of advisory providers are deemed to be ‘in writing’ and subsequently throughout the scope of the primary prong of the definition of commercial,” Hanna stated.
Backside line: “The SEC will anticipate compliance with the Advertising Rule with respect to telemarketing communications which can be ads below the rule,” Hanna relayed.
See the gallery for the states which have enacted new “mini-TCPAs” prior to now few years, as defined by Eversheds.