Does Minnesota have its own version of the TCPA?

The Telephone Consumer Protection Act (“TCPA”) was enacted in 1991 by Congress to combat unwanted telephone marketing calls by placing restrictions around the use of an automated telephone dialing system as well as maintaining and adhering to Do Not Call (“DNC”) lists.

Minn. Stat. § 325E.26 – § 325E.31 regulates the use of automatic dialing-announcing devices (“ADADs”) for commercial telephone solicitations in Minnesota. Similar to the TCPA, these statutes impose restrictions on the use of ADADs and are designed to protect consumer privacy and prevent unwanted and intrusive telemarketing calls. State by Humphrey v. Casino Marketing Group, Inc., 491 N.W.2d 882 (1992).

1.     Prohibited Acts:

Minn. Stat. § 325E.27 provides, “A caller shall not use or connect to a telephone line an automatic dialing-announcing device unless: (1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered. Minn. Stat. § 325E.27(a) (2022).  An ADAD is “a device that selects and dials telephone numbers and that, working alone or in conjunction with other equipment, disseminates a prerecorded or synthesized voice message to the telephone number called.” Id. § 325E.26, subd. 2.  “Caller” includes “a person, corporation, firm, partnership, association, or legal or commercial entity who attempts to contact, or who contacts, a subscriber in this state by using a telephone or a telephone line.” Id., subd. 3.  A “subscriber” is “a person who has subscribed to telephone service from a telephone company or the other persons living or residing with the subscribing person.” Id., subd. 5. “Message” means any call, regardless of its content. Id., subd. 6.

All ADADs must be designated and operated to disconnect within ten seconds after a subscriber terminates the telephone call. Id., § 325E.28.

When an ADAD message is immediately preceded by a live operator, the operator must, at the outset of the message, disclose:

• the name of the business, firm, organization, association, partnership, or entity for which the message is being made;
• the purpose of the message;
• the identity or kinds of goods or services the message is promoting; and
• If applicable, the fact that the message intends to solicit payment or commitment of funds.

Id., § 325E.29.

ADADs may not be used before 9:00 a.m. or after 9:00 p.m. Id., § 325E.30.

2.     Exemptions:

Minn. Stat. § 325E.27 and §325E.30 do not apply to (1) messages from school districts to students, parents, or employees, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules. Nor do the statutes apply to messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind. Id., § 325E.27(b).

3.     Enforcement:

A person who is found to have violated Minn. Stat. § 325E.27 – §325E.30 is subject to the penalties and remedies, including a private right of action to recover damages as provided in Minn. Stat. § 8.31. Id., § 325E.31. This includes the ability to bring a civil action to recover damages, costs and disbursements, including costs of investigation and reasonable attorney’s fees, and to receive other equitable relief as determined by the court. Minn. Stat. § 8.31, subd. 3 (2022). In order for an award of damages under this statute to be allowed, the plaintiff must demonstrate that the action benefits the public as a whole, rather than only the plaintiff individually. Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000) (“[T]he Private AG Statute applies only to those claimants who demonstrate that their cause of action benefits the public.”); see also Overen v. Hasbro, Inc., Civ. No. 07- 1430 (RHK/JSM), 2007 WL 2695792, at *2 (D. Minn. Sept. 12, 2007) (“[I]ndividuals who bring a cause of action pursuant to the Private AG Statute must show that the action is brought to benefit the public.” (citing Ly, 615 N.W.2d at 314)).

The attorney general is also entitled to sue for and recover on behalf of the state a civil penalty from a person found to have violated Minn. Stat. § 325E.27 – §325E.30. Minn. Stat. § 325E.31 (2022). The court must determine the civil penalty amount, which must not exceed $50,000. Id.

Distinctions between Minn. Stat. § 325E.26 – § 325E.31 and the TCPA.

Minn. Stat. § 325E.26 – § 325E.31 and the TCPA have key differences. Section (b) of the TCPA establishes requirements for sending communications via text, phone, or fax. Subsection (b)(1) established four prohibitions:

• Calls made using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice message to (1) an emergency telephone line, (2) lines of any guest or patient rooms of a hospital, health care facility, elderly home or similar establishment, or (3) any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call (i.e. wireless lines) are forbidden. 47 U.S.C. § 227(b)(1)(A). Importantly, under the TCPA, the term “call” includes both voice messages and text messages. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). Subsection (b)(1)(A) exempts calls made for emergency purposes or made with “prior express consent” of the called party and calls to wireless lines by callers seeking solely to collect a debt owed to or guaranteed by the United States. Id.
• Calls made to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party are also prohibited unless the call (1) is initiated for emergency purposes, (2) is not made for a commercial purpose, (3) is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing, (4) is made by or on behalf of a tax-exempt nonprofit organization, (5) is made by or on behalf of a tax-exempt nonprofit organization, or (6) delivers a “health care” message for a covered entity or business associate as defined by the HIPAA Privacy Rule. Id., § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(3).
• Sending unsolicited advertisements to fax machines is proscribed unless the advertisement is from a sender with an established business relationship with the recipient, the sender obtained the recipient’s fax number properly (e.g. via through voluntary communication of such number, or through a directory, advertisement, or Internet sit to which the recipient voluntarily agreed to make its fax number available for public distribution), and the fax contains the requisite opt-out notice. Id., § 227(b)(1)(C). The exception does not apply after a recipient submits a proper opt-out request. Id.
• Using automatic telephone dialing systems to engage two or more of a business’ telephone lines simultaneously is prohibited. Id., § 227(b)(1)(D).

Section (b)(3) provides a private right of action to any person or entity to enjoin further TCPA violations and/or collect actual monetary loss, or receive $500 in damages for each violation, whichever is greater. Id., § 227(b)(1)(3). If the court finds that the defendant willfully or knowingly violated the TCPA, it may, at its discretion, award up to three times the amount of statutory damages, resulting in up to $1,500 per violation Id. Under section (b)(4), violations also result in a forfeiture penalty to be paid to the United States. Id., § 227(b)(1)(4). 47 U.S.C. § 503(b) outlines the different maximum forfeiture penalty amounts that can be imposed depending on the type of violator. For intentional violations, the civil forfeiture penalty is increased by an amount not to exceed $10,000. Id.

States may also bring a civil action on behalf of its residents to enjoin telephone calls or other transmissions that violate the TCPA and/or to recover for actual monetary loss, or receive $500 in damages for each violation. Again, if the court finds the defendant willfully or knowingly violated such regulations, the court may award up to three times the amount of statutory damages. 47 U.S.C. § 227(g).

Section (e) also prohibits any person, in connection with any voice service or text messaging service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value. Id., § 227(e)(1). Violations are subject to a forfeiture penalty (in addition to other penalties provided by the TCPA).  Id., § 227(e)(5).  Willful and knowing violations also carry the possibility of a criminal fine. Id. States have the authority to bring an action in federal court on behalf of all state residents for any violations under this section as well. Id., § 227(e)(6).

The TCPA mandates the FCC to prescribe regulations implementing the TCPA. Accordingly, additional restrictions apply. For example, the Telemarketing Sales Rule, which was jointly implemented by the FCC and Federal Trade Commission (“FTC”), restricts telemarketers from making outbound telephone calls to a person’s residence at any time other than between 8:00 a.m. and 9:00 p.m. local time at the called person’s location. 16 C.F.R. § 310.4(c). The FCC and FTC also worked together to develop the national Do Not Call Registry, which became effective on March 31, 2023. See 15 U.S.C. § 6151. Telemarketers are prohibited from calling numbers on the registry, absent certain exceptions. For instance, the do-not-call registry restrictions do not apply to charitable or political fundraising calls. See Mainstream Marketing Services, Inc. v. F.T.C., 358 F.3d 1228 (2004). Additionally, telemarketers are not liable for calls made to numbers on the registry if they have obtained the consumer’s prior express invitation or permission, evidenced by a signed, written agreement. See Hossfeld v. Allstate Insurance Co., 726 F.Supp.3d 852 (2024).

Consumer protection statutes often paired with Minn. Stat. § 325E.26 – § 325E.31 and the TCPA.

The Minnesota statutes often paired with Minn. Stat. § 325E.26 – § 325E.31 and the TCPA include the Minnesota Consumer Fraud Act (“CFA”) and the Uniform Deceptive Trade Practices Act (“UDTPA”). Similarly, Minn. Stat. § 325E.395 governs unsolicited advertisements sent via fax machine, while Minn. Stat. § 325F.694 governs commercial electronic messages.

1.     Minn. Stat. § 325F.69:

The Minnesota Consumer Fraud Act provides legal protection to consumers by regulating the use of fraudulent or deceptive practices by businesses. The statute provides that “[t]he act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided in section 325F.70. Minn. Stat. § 325F.69, subd. 1 (2004).

The attorney general is primarily responsible for enforcement of the act’s provisions and may “institute a civil action in the name of the state in the district court for an injunction prohibiting any violation of sections 325F.68 to 325F.70.” Minn. Stat. § 325F.70 (2003). Private parties may also sue under the law’s to recover damages and receive other equitable relief. Minn. Stat. § 8.31, subd. 3a (2003). The Minnesota Court of Appeals has concluded that rescission is a permissible remedy under Minnesota’s consumer fraud statutes. Ponzo v. Affordable Homes of Rochester, LLC, 2005 WL 1804644, *4 (Minn. Ct. App. 2005).

To prevail, private parties suing under the Consumer Fraud Act must show: (1) that they have suffered damages; (2) that they are a “consumer” as broadly defined; (3) that their injury was caused by the sale of “merchandise” which is defined much more broadly than the concept of products to include “any objects, wares, goods, commodities, intangibles, real estate, loans or services;” and (4) that the action will benefit the public interest and not simply provide a remedy for the individual complainant. Group Health Plan, Inc. v. Philip Morris Inc., 621 N.W.2d 2, 13 (Minn. 2001). However, a plaintiff need not show that the defendant had a specific intent to mislead consumers. Eager v. Siwek Lumber & Millwork, Inc., 392 N.W.2d 691, 695 (Minn. Ct. App. 1986). And proof of reliance is not always required. If only injunctive relief is sought, the plaintiff must establish “merely a ‘legal nexus’ between the act and injury, which may be satisfied by demonstrating that defendants ‘intended to induce reliance.’” Thompson v. American Tobacco Co., Inc., 189 F.R.D. 544, 553 (D. Minn. 1999) (citing LeSage v. Norwest Bank Calhoun-Isles, N.A., 409 N.W.2d 536, 539-541 (Minn. Ct. App. 1987)). Where a plaintiff seeks damages “direct evidence of reliance by individual consumers [is] not required” as long as the plaintiff shows “a causal nexus” between his injuries and the defendant’s wrongful conduct. Group Health Plan, 621 N.W.2d at 14.

2.     Minn. Stat. § 325D.44:

Minn. Stat. § 325D.44 regulates deceptive trade practices. A deceptive trade practice occurs when a person or company: (1) in the conduct of its own business, vocation or occupation; (2) disparages the goods or services of a competitor by using false or misleading facts; (3) resulting in financial loss for the competitor. CIVJIG 40.15 Product or Services Disparagement, 4 Minn. Prac., Jury Instr. Guides–Civil CIVJIG 40.15 (6th ed.).

Under the statute, a person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person:

• passes off goods or services as those of another;
• causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
• causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;
• uses deceptive representations or designations of geographic origin in connection with goods or services;
• represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;
• represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand;
• represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
• disparages the goods, services, or business of another by false or misleading representation of fact;
• advertises goods or services with intent not to sell them as advertised;
• advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
• makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions;
• in attempting to collect delinquent accounts, implies or suggests that health care services will be withheld in an emergency situation;
• engages in (i) unfair methods of competition, or (ii) unfair or unconscionable acts or practices; or
• engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.

Minn. Stat. § 325D.44, subd. 1 (2024).

The only remedy for violation of the statute is injunctive relief. Minn. Stat. § 325D.45, subd. 1. Proof of monetary damage, loss of profits, or intent to deceive is not required. Id. Costs shall be allowed to the prevailing party unless the court otherwise directs. The court may award attorneys’ fees to the prevailing party if (1) the party complaining of a deceptive trade practice has brought an action knowing it to be groundless, or (2) the party charged with a deceptive trade practice has willfully engaged in the trade practice knowing it to be deceptive. Id., subd. 2.

3.     Minn. Stat. § 325E.395:

Minn. Stat. § 325E.395 prohibits unsolicited advertisements sent via fax machine, unless the sender has established a toll-free number that can be used to “opt out” of further fax advertisements.  Minn. Stat. § 325E.395, subd. 1. Senders of unsolicited fax advertisements are required to include a statement in the advertisement about the toll-free number and an address that the recipient can use to “opt out” of further fax advertisements. Id. Minn. Stat. § 325E.395 does not apply to the transmission of documents by a telecommunications service provider to the extent that the telecommunications service provider merely provides transmission facilities. Id., subd. 2.

Violations of Minn. Stat. § 325E.395 are subject to the penalties and remedies are provided in Minn. Stat. §  8.31, which as described in greater deal above, includes a private right of action. Id., subd. 2.

4.     Minn. Stat. § 325F.694:

Minn. Stat. § 325F.694 governs false or misleading commercial electronic messages. “Commercial electronic mail message” means an electronic mail message sent through an Internet service provider’s facilities located in Minnesota to a resident of Minnesota for promoting real property, goods, or services for sale or lease. Minn. Stat. § 325F.694, subd. 1(b).

The statute prohibits initiation the transmission of a commercial electronic mail message that: (1) uses a third party’s Internet domain name without permission of the third party, or otherwise misrepresents any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or (2) contains false or misleading information in the subject line. Minn. Stat. § 325F.694, subd. 2. The subject line of a commercial electronic message must start with “ADV”, unless: (1) the recipient has consented to receive or has solicited electronic mail messages from the initiator; (2) the message is from an organization using electronic mail to communicate exclusively with its members; (3) the message is from an entity which uses electronic mail to communicate exclusively with its employees or contractors; or (4) there is a business or personal relationship between the initiator and the recipient. Id., subd 3. The sender must include a toll-free number or other way for recipients to opt out. Id., subd 4. An injured person may recover the lesser of $25 for each message received that violates subdivision 2 (e.g., uses a third party’s Internet domain name without permission  or is false or misleading), or $35,000 per day; or the lesser of $25 for each message received that violates subdivision 3 (e.g., the subject line does not start with “ADV”), or $25,000 a day. Id., subd 7. An injured electronic mail service provider may recovery actual damages, or elect to recover damages similar to that of an injured person. Id. Damages include costs, disbursements, and reasonable attorney’s fees. Id. Additional remedies are available under Minn. Stat. §  8.31. Id.

Class actions are not permitted under Minn. Stat. § 325F.694. Id.

How to comply with Minn. Stat. § 325E.26 – § 325E.31.

To safeguard against the effects of violating Minn. Stat. § 325E.26 – § 325E.31, follow these best practices:

• Although Minnesota no longer maintains a Do Not Call list, regularly check the National Do Not Call Registry to ensure you are not contacting numbers that have opted out of receiving telemarketing calls.
• Adhere to restrictions on calling times, avoiding calls outside of permissible hours (i.e., no telemarketing calls before 9:00 a.m. or after 9:00 p.m.).
• Always get explicit, written or recorded consent from consumers before making any telemarketing calls.
• Always identify yourself and your business clearly when making calls. Further identify the purpose of the call, the goods or services the message is promoting, and, if applicable, the fact that the message intents to solicit payment.
• Provide a clear and easy way for consumers to opt out of receiving communications.
• Maintain detailed records of all calls, including consent documentation and opt-out requests.