New Emergency Declaration in New York Furthers Ban on Unsolicited Telemarketing Calls

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller, Jonathan R. Vaitl

On 5 August 2021, Governor Andrew Cuomo continued a statewide disaster emergency due to gun violence that he first declared on 6 July 2021. As previously discussed in our March 2020 post about Governor Cuomo’s COVID-19 emergency declaration, under New York’s Do Not Call Registry statute and its Telemarketing and Consumer Fraud and Abuse Protection Act, it is illegal to knowingly make unsolicited telemarketing sales calls to areas of the state under an emergency declaration. The Governor’s latest executive order declaring a state of emergency once again triggers this prohibition on a statewide basis.

Under New York’s Do Not Call Registry statute, “telemarketing sales calls” include calls made by telemarketers and calls made using prerecorded or artificial voice technology. The definition of “unsolicited telemarketing sales calls” excludes calls in response to an unsolicited customer inquiry and calls to a customer with whom the caller has an existing business relationship. “Telemarketing” excludes calls “intended to implement or complete a transaction to which the customer has previously consented,” New York GBS § 399-z(1)(i). But because of ambiguity in the statute, it is unclear whether this exclusion is incorporated into the definition of “telemarketing sales calls.” Additionally, new amendments to the Do Not Call Registry law, which became effective on 12 August 2021, also expand the definition of telemarketing to include text messaging.

New York’s Telemarketing and Consumer Fraud and Abuse Protection Act, New York GBS § 399-pp, does not incorporate an exclusion for completing transactions. For businesses marketing to other for-profit businesses the Telemarketing and Consumer Fraud and Abuse Prevention Act provides an exemption from its requirements for telephone calls between a telemarketer and any for-profit business, except calls involving the retail sale of nondurable office or cleaning supplies. New York GBS § 399-pp(10)(b)(4). The Do Not Call Registry statute, however, does not contain any similar exemption. The telemarketing ban in the Do Not Call Registry therefore may still apply to businesses making telemarketing calls and text messages to for-profit businesses even if those calls would be exempt from the ban under the Telemarketing and Consumer Fraud and Abuse Prevention Act.

Governor Cuomo’s 6 July 2021, executive order states that the disaster declaration will continue “until further notice,” meaning that the telemarketing ban will be in effect for an indefinite period of time. Violating the ban could lead to civil penalties. Businesses calling New York residents therefore should carefully review their procedures to ensure they are complying with New York law.