Does your state have its own version of the TCPA?

Yes, Washington enacted RCW 19.158.040 and RCW 80.36.390 -.400.  A violation of these statutes is a per se “unfair or deceptive act in trade or commerce” for the purpose of applying the consumer protection act, RCW 19.86, et. seq.

If so, please explain the distinction between the state’s iteration of the TCPA.

RCW 80.36.390 and RCW 80.36.400 expressly provide that violations of 47 USC §227 also violate those statutes.  RCW 80.36.390(9), (10);  RCW 80.36.400(3)(a).  These Washington statutes and RCW 19.158.040 apply to additional conduct detailed in the statutes; provide for enforcement by the Washington Attorney General; and generally provide for larger penalties, fines, and damage awards than are provided for by the TCPA.

RCW 80.36.390 states as follows:

Telephone solicitation—Penalty

(1)(a) As used in this section, “telephone solicitation” means the unsolicited initiation of a telephone call by a commercial or nonprofit company or organization to a person for the purpose of encouraging the person to purchase property, goods, or services, wrongfully obtaining anything of value, or soliciting donations of money, property, goods, or services.

(b) “Telephone solicitation” does not include:

(i)  Calls made in response to a request or inquiry by the called party. This includes calls regarding an item that has been purchased by the called party from the company or organization during a period not longer than 12 months prior to the telephone contact;

(ii)  Calls made by a not-for-profit organization, as defined by 26 U.S.C. Sec. 501 of the federal internal revenue code, to its own list of bona fide or active members of the organization;

(iii) Calls made by a membership or labor organization to its own list of bona fide or active members of the organization;

(iv) Calls limited to polling or soliciting the expression of ideas, opinions, or votes; or

(v) Business-to-business contacts.

(c) “Telephone call” means any communication made through a telephone that uses a live person, artificial voice, or recorded message.

(2) (a) For purposes of this section, each individual real estate agent or insurance agent who maintains a separate list from other individual real estate or insurance agents shall be treated as a company or organization.

(b) For purposes of this section, an organization as defined in RCW 29A.04.086 or 29A.04.097 and organized pursuant to chapter 29A.80 RCW shall not be considered a commercial or nonprofit company or organization.

(3) A person making a telephone solicitation must identify him or herself and the company or organization on whose behalf the solicitation is being made and the purpose of the call within the first 30 seconds of the telephone call.

(4) As used in this section, “telephone solicitor” means a commercial or nonprofit company or organization engaged in telephone solicitation.

(5) If the telephone solicitor is requesting a donation or gift of money, the telephone solicitor must ask the called party whether they want to continue the call, end the call, or be removed from the solicitor’s telephone lists.

(6) If, at any time during the telephone contact, the called party states or indicates they want to end the call, the telephone solicitor must end the call within 10 seconds.

(7) If, at any time during the telephone contact, the called party states or indicates that he or she does not want to be called again by the telephone solicitor or wants to have his or her name, individual telephone number, or other contact information removed from the telephone lists used by the telephone solicitor:

(a)    The telephone solicitor shall inform the called party that his or her contact information will be removed from the telephone solicitor’s telephone lists for at least one year;

(b) The telephone solicitor shall end the call within 10 seconds;

(c) The telephone solicitor shall not make any additional telephone solicitation of the called party at any telephone number that the called party has requested be removed from the solicitor’s telephone lists for a period of at least one year; and

(d) The telephone solicitor shall not sell or give the called party’s name, telephone number, and other contact information to another company or organization: PROVIDED, That the telephone solicitor may return the list, including the called party’s name, telephone number, and other contact information to the company or organization from which it received the list.

(8) A telephone solicitor shall not place calls to any person which will be received before 8:00 a.m. or after 8:00 p.m. at the call recipient’s local time.

(9) No person may initiate, or cause to be initiated, a telephone solicitation to a telephone number registered on the do not call registry maintained by the federal government pursuant to telephone consumer protection act, 47 U.S.C. Sec. 227 and related regulations, as currently enacted or subsequently amended. This subsection applies to all telephone solicitation intended to be received by telephone customers within the state.

(10) It is unlawful for a person to initiate, or cause to be initiated, a telephone solicitation that violates 47 U.S.C. Sec. 227(e)(1), as currently written or as subsequently amended or interpreted by the federal government. This subsection applies to all telephone solicitation intended to be received by telephone customers within the state.

(11) A violation of subsection (3), (4), (5), (6), (7), (8), (9), or (10) of this section is punishable by a fine of up to $1,000 for each violation.

(12) The attorney general may bring actions to enforce compliance with this section. The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW.

(13) A person aggrieved by repeated violations of this section may bring a civil action in superior court to enjoin future violations, to recover damages, or both. The court shall award damages of at least $1,000 for each individual violation of this section. If the aggrieved person prevails in a civil action under this subsection, the court shall award the aggrieved person reasonable attorneys’ fees and cost of the suit.

(14) The utilities and transportation commission shall by rule ensure that telecommunications companies inform their residential customers of the provisions of this section. The notification may be made by (a) annual notice in the billing statements sent to residential customers, or (b) conspicuous publication of the notice in the consumer information pages of local telephone directories.

As noted above, in an action by the State, the court may impose fines (penalties) up to $1,000 for each violation. In a private action, the court must award at least $1,000 as damages for each violation of RCW 80.36.390.  A similar provision in RCW 80.36.400 (below) provides for an award of at least $1,000 as damages for each violation of that statute.

RCW 80.36.400 states as follows:

Automatic dialing and announcing device–Commercial solicitation by

(1) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a)(i) “Assist in the transmission” means actions taken to provide substantial assistance or support, which enables any person to formulate, originate, initiate, or transmit a commercial solicitation when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial solicitation is engaged, or intends to engage, in any practice that violates chapter 19.86 RCW, the consumer protection act.

(ii) “Assist in the transmission” does not include any of the following:

(A) Activities of an entity relating to the design, manufacture, or distribution of any technology, product, or component that has a commercially significant use other than to violate or circumvent this section;

(B) Activities of a telecommunications provider or other entity that are limited to providing access to the internet for purposes excluding initiation of a telephone communication; or

(C) Activities of a terminating provider relating to the transmission of a telephone communication.

(b) “Automatic dialing and announcing device” is a system which automatically dials telephone numbers and transmits a recorded or artificial voice message once a connection is made. A recorded or artificial message is transmitted even if the recorded or artificial message goes directly to a recipient’s voicemail.

(c) “Commercial solicitation” means the unsolicited initiation of a telephone communication made for the purpose of encouraging a person to purchase property, goods, or services, or wrongfully obtaining anything of value.

(d) “Terminating provider” means a telecommunications provider that provides voice services to an end user customer.

(2) No person may use an automatic dialing and announcing device for purposes of commercial solicitation. This section applies to all commercial solicitation intended to be received by telephone customers within the state.

(3) No person may assist in the transmission of a commercial solicitation described in subsection (2) of this section. In any action arising out of a violation of this subsection, it shall be an affirmative defense that a telecommunications provider both:

(a) Acted in compliance with 47 U.S.C. Sec. 227, 16 C.F.R. Part 310, and related regulations; and

(b) Implemented a reasonably effective plan to mitigate origination, initiation, or transmission of a commercial solicitation described in subsection (2) of this section.

(4) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW. In addition to all remedies available in chapter 19.86 RCW, a person who is injured under this section may bring a civil action in the superior court to enjoin further violations and shall recover actual damages or $1,000 per violation of this section, whichever is greater.

(5) Nothing in this section shall be construed to prevent the Washington utilities and transportation commission from adopting additional rules regulating automatic dialing and announcing devices.

RCW 80.36.400(4) provides:

The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW. In addition to all remedies available in chapter 19.86 RCW, a person who is injured under this section may bring a civil action in the superior court to enjoin further violations and shall recover actual damages or $1,000 per violation of this section, whichever is greater.

RCW 19.158.040 states as follows:

Unprofessional conduct.

In addition to the unprofessional conduct described in RCW 18.235.130, the director of the department of licensing may take disciplinary action for any of the following conduct, acts, or conditions:

(1) It shall be unlawful for any person to engage in unfair or deceptive commercial telephone solicitation.

(2) A commercial telephone solicitor shall not place calls to any person which will be received before 8:00 a.m. or after 8:00 p.m. at the call recipient’s local time.

(3) A commercial telephone solicitor may not engage in any conduct the natural consequence of which is to harass, intimidate, or torment any person in connection with the telephone call.

(4) A person making a telephone solicitation must identify him [himself] or herself and the company or organization on whose behalf the solicitation is being made and the purpose of the call within the first 30 seconds of the telephone call.

(5) A commercial telephone solicitor must end a call within 10 seconds if the called party states or indicates they want to end the call.

(6) A commercial telephone solicitor must promptly implement a call recipient’s statement or indication they do not want to be called again, or want to be removed from the telephone lists used by the company or organization making the telephone solicitation.

RCW 19.158.140 allows the State to recover civil penalties for each violation of the statute, in an amount no less than $500 per violation, not to exceed $2,000 per violation.  RCW 19.158.160 imposes criminal penalties on any person who knowingly violates the statute or otherwise knowingly engages, directly or indirectly, in the prohibited conduct.

RCW 19.158.130 provides a private right of action:

In addition to any other penalties or remedies under chapter 19.86 RCW, a person who is injured by a violation of this chapter may bring an action for recovery of actual damages, including court costs and attorneys’ fees. No provision in this chapter shall be construed to limit any right or remedy provided under chapter 19.86 RCW. Certain elements of the private cause of action authorized by RCW 19.86.090 are established by proof of a violation of RCW 19.158.040.

RCW 19.158.030 states as follows:

Violation is an unfair or deceptive act.

Unfair and deceptive telephone solicitation is not reasonable in relation to the development and preservation of business. A violation of this chapter is an unfair or deceptive act in trade or commerce for the purpose of applying the consumer protection act, chapter 19.86 RCW.

Please address state specific consumer protection statutes that are often paired with TCPA or its state iterations and the additional element and penalties.

Washington’s Consumer Protection Act contains the state’s counterpart to section 5 of the Federal Trade Commission Act, RCW 19.86.020, which provides:

Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

A violation of RCW 19.86.020 is actionable by the Attorney General under RCW 19.86.080, while RCW 19.86.090 allows a private action based on such violation.

The Attorney General may seek injunctive relief, restitution, and civil penalties under the Consumer Protection Act, as well as attorney fees.  RCW 19.86.080;  RCW 19.86.140.

A private cause of action is authorized by RCW 19.86.090:

Any person who is injured in his or her business or property by a violation of RCW 19.86.020 … may bring a civil action in superior court to enjoin further violations, to recover the actual damages sustained by him or her, or both, together with the costs of the suit, including a reasonable attorney’s fee. In addition, the court may, in its discretion, increase the award of damages up to an amount not to exceed three times the actual damages sustained: PROVIDED, That such increased damage award for violation of RCW 19.86.020 may not exceed twenty-five thousand dollars:

…

There are five factors to prove a CPA violation that is actionable by a private litigant:

(1) Is the action complained of an unfair or deceptive act or practice?

(2) Did the action occur in the conduct of trade or commerce?

(3) Is there a sufficient showing of public interest?

(4) Was there injury to the plaintiff’s business or property? and

(5) Was there a causal link between the unfair or deceptive acts and injury suffered?

Through RCW 19.158.030, proof of a violation of RCW 19.158.040 establishes the first factor.  In addition, RCW 19.158.030 forecloses an affirmative defense under RCW 19.86.920 that the act or practice is reasonable in relation to the development and preservation of business.

RCW 80.36.390 (Telephone solicitation) and RCW 80.36.400 (Commercial solicitation by automated dialing and announcing device) also provide that violation of their provisions will be deemed a violation of the Washington Consumer Protection Act, satisfying the first factor, and also provides that a violation affects the public interest, satisfying the third factor. RCW 80.36.390(12) and RCW 80.36.400((4).  The “injury” required to establish a cause of action (the fourth factor for a private cause of action under the Consumer Protection Act) is different from the damages that may be established for purposes of a recovery as well as calculation of a possible treble damage award. See, e.g., Sign-O-Lite Signs, Inc. v. DeLaurenti Florists, Inc., 64 Wn. App. 553, 563, 825 P.2d 714, 720 (1992); accord Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, 740, 733 P.2d 208 (1987); Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 792, 719 P.2d 531 (1986).Presumably the minimum damages recoverable under RCW 80.36.390(12) and RCW 80.36.400(4) will not determine the “injury to business or property” that must be established as an element of the private action, or any actual damages that must be proved to recover under RCW 19.86.090.  To support a monetary award and a potential treble damage recovery under RCW 19.86.090, proof of actual damages likely will be required.

There is a $25,000 dollar cap on the increased award based on trebling the actual  damages.  The primary driver of private plaintiffs’ use of the CPA is the fees and costs shifting provision.

An action by the Attorney General is brought pursuant to RCW 19.86.080, and doesn’t require all five factors necessary for a private action under RCW 19.86.090.  The action under RCW 19.86.080 requires the Attorney General to show:

(1) an unfair or deceptive act or practice,

(2) occurring in trade or commerce, and

(3) public interest impact.”

State v. CLA Est. Servs., Inc., 23 Wn. App. 2d 279, 291, 515 P.3d 1012, 1021–22 (2022), review denied 200 Wn.2d 1028, 523 P.3d 1187 (2023), certiorari denied 144 S.Ct. 548, 217 L.Ed.2d 292 (2024) (quoting State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011)).  As with the private cause of action, RCW 19.158.030 provides that proof of a violation of RCW 19.158.040 establishes the first factor and forecloses an affirmative defense under RCW 19.86.920 that the act or practice is reasonable in relation to the development and preservation of business.

Unlike in a private cause of action under the Consumer Protection Act (CPA), when the Attorney General brings a CPA enforcement action on behalf of the State, it is not required to prove causation or injury, nor must it prove intent to deceive or actual deception.  State v. CLA Estate Services, Inc. 23 Wn.App.2d at 291, 515 P.3d at 1021-1022.

This is an extremely low bar, with the primary issue whether the act or practice was “unfair” or “deceptive.” Although Washington courts previously followed the legislature’s admonition to be guided by decisions based on analogous federal statutes (such as section 5 of the FTC Act), the Courts have increasingly departed from decisions based on federal law, sometimes leaving the question whether an act or practice is “unfair” or “deceptive” uncertain.  Nevertheless, the proof required to establish a claim that supports a remedy (restitution, injunctive relief) allowed under RCW 19.86.080 may not be enough to establish the appropriate penalty that must be awarded under RCW 19.86.140 if violation of RCW 19.86.020 has been established in an action by the Attorney General. Factors that often are considered in determining the appropriate penalty are those listed in U.S. v. Reader’s Digest Ass’n, Inc., 662 F.2d 955, 967 (3^rd Cir. 1981), cert. denied, 455 U.S. 908 (1982): (1) whether defendants acted in good faith, (2) injury to the public, (3) defendant’s ability to pay, (4) desire to eliminate any benefits derived by the defendants from the violation at issue, and (5) necessity of vindicating the authority of the law enforcement agency.  See, e.g., State v. L.A. Investors, LLC, 2 Wn. App.2d 524, 546, 410 P.3d 1183, 1196 (2018).

What are the current best practices to comply with the State’s iteration of the TCPA?

Compliance with the specific restrictions in these statutes remains best practice.  The Washington Attorney General is especially active in investigating and prosecuting violations of acts related to telephone solicitations and the Consumer Protection Act in general.