For Companies Serving Washington State - New Robocall Obligations on Service Providers

Washington State has enacted a new law imposing liability on service providers that “provide substantial assistance or support in the origination and transmission” of illegal robocalls.  The law imposes liability of up to $1,000 per violation on telecommunications providers that “assist in the transmission” of calls that are intended to defraud consumers, that are unlawful telemarketing calls as defined by state law, or that violate of the federal Telephone Consumer Protection Act (TCPA).  The text of the new law can be found here.  It will take effect on July 23, 2023.

The law defines assisting in the transmission to mean “actions taken to provide substantial assistance or support, which enables any person to formulate, originate, initiate, or transmit” an illegal call if the provider “knows or consciously avoids knowing” that the caller “is engaged in, or intends to engage, in any practice” that violates the state’s consumer protection laws.  The law excludes from provider liability “the activities of a terminating provider relating to the transmission” of an illegal call and defines a “terminating provider” as a “telecommunications provider that provides voice services to end user customers.”  The law does not define “end user customer.”  It appears that this provision imposes liability on originating providers serving businesses or intermediate providers and exempts from liability the provider directly serving the called party.  The law does not define “end user.”

The law also creates affirmative defenses for telecommunications providers.  A provider is not liable for assisting in the transmission of an illegal call if it can show that it has both (1) acted in compliance with the TCPA or the federal Telemarketing Sale Rule and (2) has implemented a reasonably effective plan to mitigate the origination, initiation, or transmission” of illegal robocalls.

Providers that originate or transmit calls in Washington State should consult with counsel regarding this new law.  Please feel free to contact Michael Pryor at mpryory@bhfs.com if you would like more information.