• Pennsylvania has enacted House Bill 318, 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.
  • 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.
  • The new law becomes effective on Dec. 3, 2019, providing only a short period of time for telemarketers to upgrade their systems to meet the new requirements.

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.

Background

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:

  • initiating "outbound telephone solicitation calls" (calls made for the purpose of soliciting the sale of consumer goods or services, or obtaining information that may or could be used for such solicitation or for obtaining credit for that purpose) to persons who previously stated they did not wish to receive such a call from or on behalf of the seller whose goods or services were being offered
  • blocking caller ID and other telemarketer screening products or services
  • initiating telephone solicitation calls to a residential or wireless telephone number that is on the Pennsylvania DNC list (individuals and businesses can enroll their telephone numbers on the DNC list by completing the enrollment form)
  • using the Pennsylvania DNC list for any purpose other than determining whether or not a telephone number is on the list
  • failing to provide the telephone subscriber with the name of the caller and the person on whose behalf he or she is calling and, upon request, a telephone number (other than a 900 number) or address at which the person or entity may be contacted5

New Prohibitions/Extended Protections

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.

  • It adds a prohibition against making telephone solicitation calls on a legal holidays.6
  • It extends all of the protections in the TRA to "business telephone subscribers," which are individuals or entities that subscribe to telephone service at a business location within Pennsylvania where the service provider classifies the line as a business line.7
  • It removes the five-year renewal requirement for keeping a phone number on the Pennsylvania DNC list, thereby giving consumers and businesses the ability to register their phone number(s) on the list permanently.8 (Consumers who have previously registered their phone number on the list need not take any action to have their numbers appear on the list permanently; i.e., they are not required to re-register or renew.)
  • It defines "robocalls" (telephone solicitation calls made to a large number of people using a computerized autodialer to deliver a prerecorded telemarketing message) and places various obligations upon telemarketers that choose to make such calls.9

Specific Provisions Governing Robocalls

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

Enforcement

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.

Effective Date

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