Telemarketing Restrictions During State of Emergency

By: Nicole Kardell

If part of your marketing plan involves calls to consumers, please be aware of additional telemarketing restrictions in some states (presently New York and Louisiana) during a state of emergency.  

New York

New York recently enacted a law to prohibit unsolicited telemarketing calls during a state of emergency. Since New York Governor Andrew Cuomo has declared a state of emergency (on March 7, and slated to be in force through September), the law’s restrictions are now in effect. 

• Restrictions under the new law: telemarketing calls to New York residents during a declared state of emergency.  

 The new restrictions can be found in two parts of the New York Code: (a) revising the state’s laws regarding a “do–not–call registry” and (b) revising the state’s Telemarketing and Consumer Fraud and Abuse Prevention Act. It is now unlawful “to knowingly make an unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency.” N.Y. Gen. Bus. Law § 399-z(5-a); see also N.Y. Gen. Bus. Law § 399-pp(7)(f). The restrictions thus apply to unsolicited sales calls to New York residents.   

• Activities that are not restricted by the new law: not by phone; to complete a transaction; B2B; where prior consent; and where existing business relationship. 

 While you cannot make sales calls to New York residents, there are activities that fall outside of the definition of “telemarketing” or are specifically excluded from the restrictions and therefore not impacted by New York’s state of emergency status. 

Under the New York “do-not-call registry” statute, the definition of “telemarketing” specifically excludes, (1) sales solicitations through other media than phone calls and (2) calls to carry out or complete a transaction to which a customer has previously consented. Therefore, marketing via email is not impacted by the new law (however, bear in mind that the CAN SPAM Act or other federal and state restrictions may apply to your marketing campaign). The definition of “telemarketing” is also limited to “customers” who are defined as natural persons who are residents of the state. That means (3) B2B calls should not be impacted by the law. Further, the definition of “unsolicited telemarketing sales call(s)” under the “do-not-call registry” statute specifically excludes (4) calls made with prior express consent and (5) calls made in connection with an unterminated existing business relationship.   

As noted above, New York’s Telemarketing and Consumer Fraud and Abuse Prevention Act also provides for telemarketing restrictions to New Yorkers during a state of emergency. This statute is not as clear about what is excluded from the definition of an “unsolicited telemarketing sales call,” and there is room for confusion between the two statutes. However, the act was revised alongside the “do-not-call registry” statute, allowing for a possible interpretation that the “do-not-call registry” statute’s relevant terms are applicable. Moreover, the act specifically exempts: calls leading to a face-to-face sale, communications initiated by a customer, and calls to for-profit businesses (unless those calls involve the sale of nondurable office and cleaning supplies). 

•  Penalties: civil enforcement and private right of action. 

The revisions to New York law do not specify penalties telemarketers may face if they fail to comply with the state of emergency restrictions. However, businesses that violate New York’s telemarketing sale rule are subject to fines of up to $11,000. Businesses are also subject to private rights of action which plaintiffs can recover actual damages or $50, whichever is greater, and up to $1,000 for willful violations.  

Louisiana 

• Restrictions: calls to Louisiana residents during a declared state of emergency.  

Louisiana law also addresses telemarketing restrictions during a state of emergency (Louisiana Governor John Bel Edwards declared a state of emergency on March 11). During a state of emergency “no telephonic solicitor shall engage in telephonic solicitation.” La. R.S. § 45:844.31 

• Activities that are not restricted: express request of consumer; relating to existing contract; where existing or recent business relationship; and B2B. 

Louisiana law provides three exceptions to the state of emergency telemarketing calls: calls in response to an express request of the person called (valid up to six months after request is granted); calls in connection with an existing debt or contract, payment or performance of which has not been completed; and calls to those with whom the business has an existing business relationship, or a prior business relationship that was terminated or lapsed within six months (note there is a further clarification for certain automobile sales calls).  

The Louisiana statute defines telephonic solicitation to mean a “voice or data communication made by a telephonic solicitor to a residential telephonic subscriber.” That means that telemarketing B2B calls to businesses are not restricted by the statute. 

• Penalties: civil enforcement. 

Companies found to violate Louisiana law on telemarketing calls face up to a $1500 fine per violation, with each telephonic solicitation constituting a separate offense. La. R.S. § 45:844.33.