In addition, the NYNC Act restricts the sharing of customer data by requiring telemarketers and sellers to obtain a consumer’s “express agreement,” in writing or electronic format, before transmitting, sharing, or otherwise making available any customer’s contact information, including name, telephone number, or email address, unless such disclosure is required by law or under a lawful subpoena or court order.

 

The NYNC Act retains a safe harbor exemption for companies that have obtained a version of the national DNC list from the Federal Trade Commission no more than 31 days before the call at issue is made and that have implemented comprehensive and documented (written) DNC policies and procedures.

 

The NYNC Act also retains notice and due process provisions that allow for an administrative hearing before an adjudication of liability.  The penalty for violations of New York’s telemarketing restrictions under Section 399-z of the New York General Business Law cannot exceed $11,000 per violation.  New York does not provide for a private right of action but does not “restrict any right which any person may have under any other statute or at common law.”  Stated otherwise, an aggrieved called party may still sue under the Telephone Consumer Protection Act (TCPA).  

 

Further telemarketing restrictions separate from those added by the NYNC Act were also signed into law in New York in December 2019.  Those restrictions are triggered in the event of a state of emergency or disaster emergency in the state, and should be on companies’ radar because on Saturday, March 7, 2020, New York Governor Andrew Cuomo declared a state of emergency due to the spread of the coronavirus in the state. 

 

As more fully discussed below, the new emergency restrictions change the permissible telemarketing landscape in New York in times of a state of emergency by prohibiting all unsolicited telemarketing sales calls—whether dialed manually, dialed by an automatic telephone dialing system (ATDS) or aided by other technology—unless they are made with consent or under an established business relationship.  This is different from the traditional, non-state of emergency rules, where a caller need only have consent to place auto-dialed telemarketing sales calls.  

 

Specifically, as a result of the declaration by Governor Cuomo, placing unsolicited telemarketing sales calls is restricted until the state of emergency is lifted.  The restrictions added to New York’s telemarketing laws in December 2019 amend two separate statutory sections: Section 399-z (discussed above as also having been separately amended under the NYNC Act) and Section 399-pp of the New York General Business Law.  The new restrictions are the same under both sections, namely that a telemarketer cannot “knowingly make an unsolicited telemarketing sales call to any person in a county, city, town or village under a declared state of emergency or disaster emergency . . . .”  The term “unsolicited telemarketing sales calls” is defined under Section 399-z as any telemarketing sales calls (which include calls placed by a telemarketer or by an outbound calling technology) except for those made:

 

(i) In response to an express written or verbal request by the customer; or

(ii) In connection with an established business relationship, which has not been terminated by either party, unless such customer has stated to the telemarketer that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer.

 

Absent a state of emergency, New York’s telemarketing laws require that telemarketers or sellers placing technology-aided telemarketing sales calls—or in other words, calls placed by an ATDS or technology that delivers a pre-recorded message to the recipient—first receive the recipient’s consent in writing through an express agreement. See N.Y. Gen. Bus. Law § 399-z(6). New York’s telemarketing laws are consistent with the TCPA in this respect in that technology-aided calls may be made only with the consent of the called party, but manually dialed calls may be made without such consent (assuming compliance with the opt-out requirements added under the NYNC Act).

 

There is one wrinkle in the new emergency restrictions, however, which involves the two statutory sections (§§ 399-z and 399-pp) that are amended.  Section 399-z defines “unsolicited telemarketing sales calls,” as discussed above, and carves out calls made in response to a customer’s express written or verbal request or under an established business relationship.  Unlike Section 399-z, Section 399-pp does not define “unsolicited telemarketing sales calls.”  

 

Although it is reasonable under traditional methods of statutory interpretation to look for a term’s use or meaning in other parts of the same or corresponding provisions, there is some ambiguity in the interplay between Sections 399-z and 399-pp.  An aggressive reading of the restriction added to Section 399-pp would be that all telemarketing sales calls during the state of emergency are prohibited.  A less extreme reading can be achieved by applying the definition of “unsolicited telemarketing sales calls” under Section 399-z to both sections.  This exercise remains untested, and therefore presents some potential areas for exposure.

 

Impact: So long as New York is under a state of emergency, unsolicited telemarketing sales calls, whether manually or auto-dialed, may not be made unless the call recipient has provided consent or there is an established business relationship between the caller and call recipient, and consent has not been withdrawn.  Once the state of emergency is lifted, New York’s traditional telemarketing laws should apply, requiring consent (in the specific form provided under the statute) only for auto-dialed telemarketing sales calls.  It is important to remember that additional opt-out requirements and restrictions on sharing of customer information have also recently been added to New York’s telemarketing laws and apply regardless of any state of emergency.