Pennsylvania has enacted House Bill (HB) 318,1 which expands and extends the protections given to Pennsylvania residential and wireless telephone subscribers by the 1996 Telemarketer Registration Act (TRA) in connection with telephone solicitation calls.2 The bill's main sponsor, Rep. Lori Mizgorski, described the legislation as "giving consumers the ability to sign up for the [Pennsylvania] telemarketing 'do-not-call' [DNC] list without requiring them to re-register every 5 years [and] prohibit[ing] telemarketing on legal holidays and calls initiated by computerized autodialers (robocalls)."3 Pennsylvania Gov. Tom Wolf signed the bill into law on Oct. 4, 2019.
The TRA, among other things, requires telemarketers to register with the Pennsylvania Attorney General's Office, prohibits telemarketers from engaging in certain telemarketing acts and practices declared in the law to be unlawful, and imposes written contractual requirements on them with respect to any sale of goods or services made during a telemarketing call.4 Among the acts and practices that are specifically prohibited by the TRA are the following:
Information about the new law, including frequently asked questions, how to enroll a telephone number on the do-not-call list and how to file a complaint, can be found on the Pennsylvania Attorney General's website. Information concerning where and how to register as a telemarketer also is available.
The new law amends the TRA in a number of different ways.
With specific respect to robocalls, the new law requires telemarketers to establish procedures to allow called persons to opt out of receiving future telephone solicitation calls and be immediately taken off the list. Telemarketers must also provide notice to any called number, at the beginning of the call, stating how the recipient of the call can opt out, as well as offer a mechanism by which the recipient can do so immediately or at any time during the call (the Immediate Opt-Out Mechanism). The Immediate Opt-Out Mechanism must be available to the recipient through "an automated, interactive voice-activated or key-press-activated opt-out mechanism ... including brief explanatory instructions on how to use the opt-out mechanism, within two seconds of disclosing the name of the caller and the name of the person or entity on whose behalf the call is being made."
The recipient's written consent may not be required to opt-out, and the act of opting out cannot be considered as creating an "established business relationship." (Calls made to a telephone subscriber with which the telemarketer has an established business relationship within the past 12 months preceding the call are excluded from the definition of a telephone solicitation call.)
Finally, when a robocall is left on an answering machine or a voicemail service, the message must provide a toll-free telephone number that enables the called person to call back at a later time and connect directly to the Immediate Opt-Out Mechanism and automatically record the called person's number to the do-not-call list of the telemarketer or telemarketing business.10
The enforcement provisions in the TRA have not been changed.11 The TRA is enforced by the Bureau of Consumer Protection (BCP) in the Office of Pennsylvania Attorney General, which is empowered to receive and investigate complaints from the public, as well as to bring actions to impose civil penalties upon violators and seek other relief, including injunctive relief, under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTP/CPL).12 Willful violations of the UTP/CPL carry a civil penalty of up to $1,000, or $3,000 if the person contacted is age 60 or older.13 Ten percent of any penalty the BCP collects, up to a maximum of $100, must be remitted to the complainant.14 In addition, failure to register as a telemarketer as required by the act constitutes a misdemeanor of the second degree.15 The TRA does not appear to give consumers a private right of action for violations.
Although the telemarketing law applies on its face only to telemarketers and "telemarketing businesses" (business entities that are or have engaged in the business of telephone solicitations and employ at least one telemarketer), a financial institution looking to engage the services of such an individual or entity should conduct thorough due diligence to verify that the service provider understands and is capable of complying with the TRA's provisions, and periodically monitor the service provider's performance.16 The financial institution must also keep in mind that telemarketers acting on its behalf who fail to comply with the provisions of the TRA can subject the institution to serious reputational harm.
The new law provides only a short period of time for telemarketers to upgrade their systems to meet these new requirements. It becomes effective on Dec. 3, 2019.17
1 P. L. 447, No. 73.
2 73 P.S. Trade and Commerce §§2241 et seq.
4 73 P.S. Trade and Commerce §§2243(a), 2245(a), (c), 2245.1, 2245.2.
5 73 P.S. Trade and Commerce §§2245(a)(2), 2245.1, 2245.2(a), (g), (j).
6 P. L. 447, No. 73, §2, amending 73 P.S. Trade and Commerce §2245(a) to add new ¶(10).
7 P. L. 447, No. 73, §§1, 3, 4, amending 73 P.S. Trade and Commerce §§2242 (adding definition of "business telephone subscribers"), 2245.1(2), 2245.2.
8 P. L. 447, No. 73, §4, amending 73 P.S. Trade and Commerce §2245.2(c).
9 P. L. 447, No. 73, §§1, 4, amending 73 P.S. Trade and Commerce §2242 (adding definition of "robocall"), §2242 (adding subsection (l)).
10 All of the above requirements applicable to robocalls are found in 73 P.S. Trade and Commerce §2245.2(l), which was added by P. L. 447, No. 73, §4.
11 See 73 P.S. Trade and Commerce §2245.2(k).
12 73 P.S. Trade and Commerce §§201-1 et seq.
13 73 P.S. Trade and Commerce §201-8(b).
14 73 P.S. Trade and Commerce §2245.2(k)(2).
15 73 P.S. Trade and Commerce §2243(c).
17 P. L. 447, No. 73, §5 (60 days following enactment).
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
Please note that email communications to the firm through this website do not create an attorney-client relationship between you and the firm. Do not send any privileged or confidential information to the firm through this website. Click "accept" below to confirm that you have read and understand this notice.