TCPAWorld Czar and Troutman Firm Founder Eric Troutman joined Convoso VP of Marketing Lisa Leight to talk about the most thorough and well-researched mini-TCPA bill yet. If passed, Michigan’s new bill will have wide-ranging implications for outbound call centers and could become the new standard for bills of this kind in other states.
Watch the video below to follow Eric’s entire conversation with Lisa, which covers the fine print to potential fines proposed in the new bill, and how it differs from prior bills in Oklahoma and Florida.
Lisa Leight: Can you enlighten us on what is happening in Michigan?
Eric J. Troutman: Michigan is following suit along with Florida and Oklahoma, Washington, and other states. Now they’re going to come forward with their own comprehensive TCPA sort of bill. Though this is different than the bills we’re seeing in other states. It’s more comprehensive and there’s more to it than really any other state law that we’ve seen. So this is kind of like an Omnibus Rule where they’re trying to do things regarding TCPA, automated calling, prerecorded calling, DNC calling, and then telesales, too. So you’re also looking at the content of calls and spoofing, and there’s a remarkably powerful private right of action. But even more powerful is the power that’s given to the AG’s office out there in Michigan. And I don’t view that as a surprise because, in fact, the AG’s office there in Michigan is really taking the lead in the 50-state anti-robocall AG task force. So it doesn’t surprise me that the legislature is about to give the AG’s office over there really, really a powerful private right of action and a powerful investigatory device through the use of depositions and other forms of seeking information under oath before a case is even filed.
Lisa Leight: So really putting a lot more teeth into it. Should this then go on to become a law?
Eric J. Troutman: In most states, right, you get a CID – Civil Investigative Demand. Here, you might get a deposition notice. Not only do we want you to produce records, we want you to come down here and provide testimony before cases are even filed. It’s very unusual.
Lisa Leight: Tell us a little bit about what this bill covers and what’s allowable, or not allowable under it.
Eric J. Troutman: Let’s just go through some of the high points. First, if you’re using prerecorded calls for any marketing purpose to consumers in Michigan, that is not going to be allowed without express written consent. That’s not really a big departure. We already see that same rule at the federal level, no big deal there. Zooming out, though, when we start thinking about what an autodialer is, the Michigan rule includes a definition of what’s called an ADAD, which is an automatic dialing and announcement device. The ADAD is interesting because the language is actually one that predates the TCPA.
Back in the 70s and 80s, ADAD statutes existed in California and some other states that later switched to ADAD at the federal level. But Michigan uses the old school lingo but it adopts the same definition as Florida and Oklahoma. So if you’re using a system that has the ability to select numbers automatically, that is going to be an ADAD in Michigan. Mercifully, the rules restricting the use of ADAD in Michigan will be lower. Remember, in Florida, you can’t use an autodialer for any purpose, essentially that deals with marketing without express written consent. And that’s a big change for a lot of folks in Michigan. That’s not true. The ADADs are only restricted.
Continuing on through some of the rules, the TSR component is very interesting. There are a huge number of little ticky-tack rules that are going to apply to the content of your messaging, how many times you’re allowed to call and what you can say in your calls. Like Florida, you’re limited to three attempts in a 24-hour period, or you have to have calls that have to stop at 8:00 PM in the local time zone. You can’t use any form of misleading information. Also, though, there are required disclosures that you’re going to have to have right out of the gate. Whenever you’re talking to somebody in Michigan identify your first and last name, who you’re working for, what your business is, and why you’re calling. So those are just kind of a few of the high points.
Lisa Leight: Do those required disclosures in the 3x and 24 hours apply to everybody, not just the vulnerable individuals?
Eric J. Troutman: That is correct. Now, one nice switch, although it does apply to all calls. If you have consent, you can blow past the timing requirement in Michigan, although you can’t blow past the timing requirement in Florida. So that’s a good thing. But all calls regardless of whether or not there are consented, you’re going to have to be talking and thinking about these disclosure requirements. That’s got to be built into your practices there in Michigan.
Lisa Leight: Say a little bit more about what constitutes vulnerable individuals. You mentioned the 75 age range.
Eric J. Troutman: There are two definitions in the statute, one is vulnerable numbers, and one is vulnerable individuals. It’s pretty interesting, the way those two are split up. Vulnerable numbers include any emergency telephone line A, the hospitals, the old folks, homes, and things like that. The vulnerable individuals are going to be individuals who are 75 years of age and older, and those who have disabilities. Now, it’s gonna be very interesting, because of course, when you’re making these outbound calls, you might not know if the person that you are calling has a disability, or is a member of this vulnerable population. So obviously, this bill is designed to protect people who might otherwise be preyed upon by unscrupulous folks looking to abuse elders or abused the disabled, it remains to be seen what the results will be for people who had no idea, right, they did not know they were calling the elderly person they didn’t know they’re calling a disabled person. They didn’t intend to inflict any kind of abuse on these people. And yet, they’re gonna have to reach this higher standard without really understanding or knowing how it is that that they can discern who these folks are. It’s interesting, right? It raises some constitutional issues and due process issues. It’ll be interesting to see how that plays out. But for now, the law is written as the law as written.
Lisa Leight: And as it’s written now, what are the fines that that would come into play if somebody violates that?
Eric J. Troutman: Tremendously high fines. I mean, it’s almost as if the states are like just trying to top each other. So the minimum violation in an AGs action, brought out there in Michigan, is $25,000 per violation. And if you’ve got one of these vulnerable people involved, it’s up to $75,000. For one call, this is craziness. There is also a private right of action, the private right of action is $1,000 per call. So twice as much as the TCPA. And you know, just for fun, Lisa, attorneys fees are permitted. Now, there’s an interesting little hook, though, to that private right of action. Not everyone has a private right of action, you have to have actually been harmed by the conduct. Again, it will be very interesting to see what the rulings are there does harm mean the same thing as a harm in Article 3 concrete harm analysis, or is it more of economic harm, meaning that you had to have actually lost money because, for instance, somebody deceived you or lied to you or tricked you. We have to wait and find out what the hook is for that private right of action. But where it applies, it’s 1000 bucks per plus attorneys fees, and believe me, that attorneys fees provision is going to end up being a really big deal.
Lisa Leight: Where does it stand right now? It’s a bill before the House in Michigan, what do you think is going to come?
Eric J. Troutman: So in order for it to become law, it’s very similar, they have a bicameral system just like at the federal level. So they have to pass in both the House and the Senate and be signed by the Governor to become law. I’ve got it on pretty good authority that this thing has legs. We anticipate that it will make it out of committee and that it will be passed in both the House and the Senate. There might be some modifications. As I’ve discussed on the blog, there are a few things that aren’t quite right. So there might be a couple of changes here or there just to kind of fine tune. But I would anticipate this thing to be passed probably by the end of the year. So we’ve all got to be kind of paying attention. You remember in Florida, when it came into light, there was a July 1 Effective Date. And Governor DeSantis signed it into law on June 30. The vast majority of people had no idea that this thing was about to come to the law. The November, excuse me, the Michigan bill, we’re trying to do the same thing, trying to spread awareness, make sure everyone knows there’s no effective date identified. Currently, the bill seems to contemplate that it will come into being enforceable within about 90 days after it has passed. So it looks like there’s gonna be a window there. But we don’t know, it has not actually been set that there will be an effective date and what that effective date would be. So we’ve got to keep paying attention. We, of course, will be monitoring the events out there in Michigan and provide an update as soon as we have them on tcpaworld.com.
Lisa Leight: And do you think this could be kind of a sign of more things to come in terms of other state mini-TCPA laws that just like Michigan, pulled a lot of the things from the Florida mini-TCPA? Do you think we’re going to see more like this going forward?
Eric J. Troutman: Short answer is – absolutely yes. The Michigan bill is the first of its kind. It is a comprehensive kind of an omnibus TCPA telecom, telesales bill at the state level. It’s the sort of thing that took Congress and the FCC, FTC, TSR, and CFR 30 years to put together. Some staffers there in Michigan spent the time necessary to really kind of think through these issues. And again, there’s some mix needed. It’s not 100% there, but it’s 90% there. And some folks spent a lot of time putting this together. The Florida bill was an amendment to an existing statute that was kind of slapped together, it’s garbage. The Oklahoma bills, the same thing. They just copied and pasted, there was really no thought put into it. This Michigan bill, I gotta tell you, folks, somebody spent a lot of time. I mean, hundreds of hours putting this thing together. And again, it’s pretty well-drafted, and very thoughtful. I believe they will catch on like wildfire. This is likely to be the new standard that we’re going to see across the states. I don’t think that anyone’s going to be copycatting Florida and Oklahoma anymore. Those bills are unconstitutional. This bill, again, it’s not perfect yet, but it is comprehensive, it is thoughtful, it is likely to pass constitutional muster on most fronts, you know, the questionable application of again, enhanced penalties for calls to people who have to say disabilities are elderly, in the context of people who don’t know they’re calling that population. I’m not sure that’s gonna live up to constitutional standards. But beyond that, it’s a pretty good bill. So I do think, Lisa, we’re going to be seeing this all over the place. I’m hoping that we don’t start seeing it, you know, cropping up faster than we can track it.
Lisa Leight: As companies prepare for it, make sure you’re in compliance with all these ones, make sure that you can treat different numbers differently, that you’ve got the technology to track like you said, no more than 3 times in a 24 hour period and having required disclosures that are going to be different state by state. It sounds like it’s an important tournament to make sure your technology platform can handle.
Eric J. Troutman: It’s absolutely critical. I go to all these conferences, and every time I start talking about state law, people really start freaking out. Because it’s hard enough to pay attention at the federal level. But what I tell people is, ‘relax’, assuming that you are using the proper technology platform vendors, and partners, you’re fine, because these rules are going to be built into the application of the platform for the most part. Now sometimes you might have to adjust your calling settings, there might be some situations, you have to adjust the content of your calls, like we’re talking about required disclosures, how you’re using your DIDs and cycling, basic things like how many times you can call within what period of time and what the hours are. I mean, a good platform, of course, like Convoso can track all that for you. So that takes the guesswork out. And that is obviously it’s a critical compliance tool. If you didn’t have that you’d be kind of dead in the face of 50 different states doing 50 different things.
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