Does your state have its own version of the TCPA?

Maryland has enacted its own legislation adopting the Federal Telephone Consumer Protection Act (“TCPA”), labeled the “Maryland Telephone Consumer Protection Act” (“MDTCPA or “Maryland TCPA”). This legislation, by reference, explains that a person may not violate “[t]he Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. §§ 6101 through 6108, as implemented by the Federal Trade Commission in the Telemarketing Sales Rule (16 C.F.R. 310). [i] Additionally, a person may not violate the “Telephone Consumer Protection Act, 47 U.S.C. § 227, as implemented by the Federal Trade Communications Commission in the Restrictions on Telemarketing and Telephone Solicitations Ruel (47 C.F.R. Part 64, Subpart L). [ii]

The difference between the MDTCPA from the TCPA is that the MDTCPA may impose additional  penalties than those enumerated under the TCPA. The MDTCPA provides that any violation is an unfair or deceptive trade practice within the meaning of Title 13 of the Commercial Law code and is subject to “the enforcement and penalty provisions contained in [§ 13-408 of the [Maryland]Commercial Law] article.” [iii] In addition to §13-408, plaintiffs who plea a cause of action under the MDTCPA can seek and/or recover (1) reasonable attorney’s fees; (2) damages in the amount of the greater of: (a) $500 for each violation or; (b) Actual damages sustained as a result of the violation.[iv] For the purposes of the MDTCPA, each prohibited telephone solicitation and each prohibited practice during the telephone solicitation is a separate violation, subject to the above-mentioned penalties. [v]

When the United States District Court for the District of Maryland certified a question regarding the statute of limitations for the MDTCPA, the Supreme Court of Maryland (formerly the Court of Appeals of Maryland) held that the MDTCPA is not a “specialty” claim and is not subject to the general exception for civil claims in Maryland.[vi] Thus, MDTCPA claims have a three-year statute of limitations from the date the incident accrues.[vii]

Differences in the MDTCPA and the TCPA

Maryland incorporates the TCPA by reference, meaning that a claim under the MDTCPA is largely similar to one under the TCPA. The main distinction between the MDTCPA and the TCPA lies in the potential penalties that can result from a successful lawsuit. While unreported, the Appellate Court of Maryland (formerly the Court of Special Appeals) explains:

The MDTCPA makes it a violation of state law to violate the Telemarketing and Consumer Fraud and Abuse Prevention Act, as implemented by the FTC, and the TCPA, as implemented by the FCC, and creates a private cause of action for violations of the MDTCPA. Comm. Law §§ 14-3201 – 14-3202. A plaintiff who files suit under the MDTCPA may recover the greater of the plaintiff’s actual damages or $500 “for each violation.” Id. § 14-3202(b)(2). Each prohibited telephone solicitation and each prohibited practice during a telephone solicitation is a separate violation.” Id. § 14-3202(c). [viii]

The case law in Maryland surrounding the MDTCPA is scarce, and Maryland Court’s have not performed an in-depth analysis of MDTCPA claims nor compared them to the TCPA. However, plaintiffs can recover under both acts (i.e., MDTCPA and the TCPA) when seeking relief in Maryland.[ix]

State Specific Consumer Protection Statutes that are Often Paired with TCPA or its state Iterations and the Additional Element and Penalties.

The MDTCPA is the primary consumer protection statute that is often paired with the TCPA, however, other consumer protection statutes can be brought simultaneously with other actions:

• The Maryland Consumer Protection Act
• The Maryland Consumer Debt Collection Act
• The Maryland Door-to-Door Sales Act
• The Maryland Door-to-Door Solicitations Act
• The Social Security Number Privacy Act
• The Online Child Safety Act
• The Debt Settlement Services Act

Again, Maryland’s Appellate Courts have not extensively reviewed MDTCPA claims, resulting in a lack of case law involving  a  number of  claims brought under multiple statutes contemporaneously. However, legal jurists have analyzed the potential for these claims to be brought contemporaneously with the MDTCPA and the TCPA.[x]

What are the Current Best Practices to Comply with the Maryland’s Iteration of the TCPA?

Maryland Court’s have explained that “the federal TCPA[], and by implication, the MDTCPA, seek to discourage and prevent unsolicited advertisements over the telephone lines.”[xi] Compliance with the MDTCPA is effectively synonymous with compliance with the Federal TCPA, as both statutes impose substantially similar requirements and obligations. As previously indicated, the primary distinction between the two laws pertains to the penalties for non-compliance, which are governed by the provisions of the MDTCPA.

Therefore, an entity or individual that adheres to the requirements set forth by the TCPA will, by extension, be in compliance with the MDTCPA as well.