No, New York telemarketing is not dead, but it is certainly heading down a winding and treacherous path. While this may sound unnerving, it is merely an observation based on recent statutory amendments to the law governing telemarketing sales efforts in New York State. Of particular import is new legislation that amends the State’s General Business Law, Section 399-z, the law that established the “No Telemarketing Sales Calls Statewide Registry.” Governor Kathy Hochul recently signed this legislation into law, further restricting the manner in which telemarketing sales calls may be conducted in New York. As readers of our blog know, marketing companies’ practices must adhere to Section 399-z, also known as the “Nuisance Law.” It should now be clear that New York State is serious about restricting telemarketing practices in its jurisdiction.
What are the Recent Changes to New York’s Telemarketing Law?
According to the Governor’s press release, the recent New York telemarketing legislation was designed to, among other things,“help safeguard New Yorkers from continuous unwanted calls.”Specifically, the revised law requires telemarketers to give customers the option to be added to a telemarketing company’s internal Do-Not-Call list at the outset of all sales calls.Specifically, the right to be added to the internal do-not-call list must be disclosed immediately after the telemarketing company (or seller), and the individual who is calling on its behalf, is identified and before the call otherwise proceeds. This is an important change from the existing law which does not mandate when notice must be given. Apparently, lawmakers have suggested that telemarketing companies often wait until the end of sales calls to mention the State-mandated option to be added to the callers’ internal Do-Not-Call lists. This often takes place at a point during calls when consumers have already hung up. By not realizing that such a request could have been made, those consumer phone numbers may be called time and again. In signing the measure into law, Governor Hochul stated, “[f]or too long, New Yorkers have dealt with these nuisance calls, not knowing they can avoid these interactions by being added to the telemarketer’s do-not-call list.”
Additional Existing New York Telemarketing Law Requirements
For telemarketing sales calls delivering pre-recorded messages that could be answered by consumers, telemarketers must allow consumers to automatically add their phone numbers to the telemarketers’ do-not-call lists by pressing a key or via an automated interactive voice system. Should the consumer opt out in this manner, the telemarketer must immediately disconnect the call. In the case of voicemail or an answering machine, telemarketers must include in their prerecorded messages a toll-free number that consumers can call to reach an automated service that will add consumer telephone numbers to the telemarketer do-not-call lists.
Penalties for violation of the New York Telemarketing Law
Please note that the Do-Not-Call announcement revision to the law goes into effect on March 6, 2023, just a few months from now. Importantly, individual consumers do not have a private right of action under the existing law as amended. Bear in mind, however, that the law does provide that “[n]othing in this subdivision shall be construed to restrict any right which any person may have under any other statute or at common law.” As we have explained in an earlier blog, the New York Secretary of State is charged with enforcing the Do Not Call Law and the Nuisance Call Act. If, after conducting an investigation and holding a hearing, the Secretary finds that a telemarketer or seller violated the law, the State is authorized to impose fines of up to $11,000 per violation.
How can Businesses Avoid Liability Under New York’s Telemarketing Law?
Traditional telemarketing campaigns often involve a high volume of calls/text messages and, if done incorrectly, expose companies to considerable liability. Lawsuits filed by the FTC, state Attorneys General and private litigants usually seek significant monetary relief from companies and their owners. To minimize potential risks, telemarketers should retainexperienced counsel to ensure compliance with applicable federal and state laws. The best way to save businesses and their principals substantial time and money is to retain counsel that is knowledgeable and experienced in telemarketing law compliance long before receiving a complaint. Counsel should know the ins and outs of New York’s telemarketing regulationsand understand the nuances that each complaint or lawsuit may bring. Because every investigation and proceeding is different, each requires specialized attention.
Please note that this is only a brief overview of some of the specific provisions of New York’s telemarketing law and is not intended to be all encompassing. If you need guidance in connection with launching a telemarketing campaign, please email us at firstname.lastname@example.org, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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