Washington State Mini-TCPA - Eric Troutman Reviews New Law

When it comes to call center compliance, there’s one thing we know for certain: legislators rarely make it any simpler.

Decision-makers and stakeholders in sales and marketing have long had to worry about overnight changes in the realm of federal TCPA compliance and enforcement. But lately, it’s individual states who have been getting in on the action. The latest state to pass and enact its own “mini-TCPA” law: Washington, whose House Bill (H.B.) 1497 took effect on June 9, 2022.

To get the skinny on this new law, Convoso’s Lisa Leight sat down with Eric J. Troutman, one of the country’s leading compliance experts and litigators. Watch their conversation in the video here—or read the transcript of their discussion below.

Lisa Leight: First it was Florida—and now states keep coming out with their own “mini-TCPA” laws. Tell us about what came down from the state of Washington.

Eric J. Troutman: It’s pretty awful the way the state laws are proliferating. I think the big thing to take away from Washington is that the new law isn’t as dire as, say, Florida or Oklahoma, but it’s another example of how the patchwork just isn’t lining up.

Under federal law, we know that if you’re doing a pre-recorded marketing call, you have to identify yourself within two seconds of the called party picking up. Under the new Washington law, for a non-pre-recorded call, you have to identify yourself within 30 seconds of the start of the call. Which is kind of weird—what are you doing for those 30 seconds before you identify who you are?

Leight: What do they mean by “identify” in these laws? Can it just be “Hey, I’m Lisa”? Do you have to give a full company name?

Troutman: You definitely need to give the full company name. Unlike other states—like in Virginia, where you actually have to give your own name—the Washington law doesn’t seem to require you to identify yourself by first and last name. Although, that might be the best practice.

They also have a couple of other requirements, which are interesting. One, you have to terminate the call within 10 seconds of being asked to stop calling. Which is pretty interesting because I get it tells you that you can’t do a rebuttal, right? There’s no opportunity for you to convince them or understand really what they mean when they say to stop calling. For instance, in the servicing context, many times if someone says, “Don’t call me anymore,” you want to try to figure out what they mean—whether it’s on this account, this purpose, or to this number? Under the new Washington law, you’ve got 10 seconds. You might get one more question in there. But mostly, it’s just supposed to be “Well, thank you very much. Have a nice day.”

To me, the biggest change is really kind of a weird rule. Under the TCPA, somebody has to give you a very clear instruction that they want calls to stop. In order to effectuate a relocation or a DMCA request, the language that the courts look at is whether it was clearly conveyed. Under the Washington law, all they have to do is give an “indication” that they don’t want the calls anymore, and that counts as a revocation. So, what’s “indication,” exactly?

You really have to have your creative hats on when you start trying to call into Washington now because any indication that the consumer would like the call to stop, you have 10 seconds to stop the call, say “bye-bye,” and send them off

One last rule that I think is interesting in Washington. Again, under the federal rules, you have to honor a DNC [Do Not Call] request for five years. In Washington—I don’t even know what to make of this—you only have to honor that request for one year. Again, it’s just one of these additional, really difficult rules that makes you wonder how you operationalize and implement it.

Leight: Are there any exceptions?

Troutman: There are some exceptions. First of all, this only applies to marketing calls, which is something that should be kept in mind. Exceptions are also going to include nonprofit companies and anytime the call was initiated by the called party originally. So, for instance, I make an inquiry to your company and then you call back—that’s going to be an expectation to at least some pieces of the Washington law. But it’s a little unclear, right? If I make an inquiry to you, you call me back, and then I say “don’t call me anymore,” does that mean that this entire statute doesn’t apply? The answer might be yes.

Of course, under federal law, the DNC request is going to trump any previous inquiry. So again, it’s another one of those gray areas where you’re going to scratch your head. Ultimately though,

no matter what state you’re in, the best practice is always to be conservative and use whatever the highest standard is, whether it’s the federal or state law.You’re always going to want to apply whatever the highest standard is.I know a number of my clients look around for what is the most restrictive standard in the country—be that at the state or federal level—and just abide by that across the entire nation so they know they’re safe.

Leight: As the landscape changes and more states come out with their own different laws, they may be the most stringent ones that you’re going to have to collate from up to 50 states.

Troutman:

Yeah, you just have to pay attention. These things are popping up everywhere.

Obviously at TCPAWorld.com I’m doing everything I can to keep track of these things as they first get introduced and then, eventually, as they become law I try to give everyone warning.

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