On Saturday, March 7, 2020, New York Governor Andrew M. Cuomo declared a disaster emergency in the State of New York in connection with the novel coronavirus, COVID-19 (the "Declaration").1 By its terms, the Declaration is to remain in effect until September 7, 2020.
The Declaration triggered a recently-enacted New York law prohibiting telemarketers2 from knowingly making unsolicited telemarketing sales calls to any person in New York (the "Prohibition").3
As the term "person" is defined to include natural persons as well as business entities, the Prohibition applies to both individuals and companies.
Under Section 5-a, telemarketers that conduct telephone sales calls from New York or to consumers resident in New York are subject to the Prohibition.
Under the Prohibition, a "telemarketing sales call" includes both live and recorded voice calls, whether made by live agents dialing ten-digit telephone numbers or by the use of a predictive dialing technology.4
Importantly, telephone calls made by a telemarketer for purposes other than inducing payment or the exchange of any other consideration for any goods or services are not subject to the Prohibition. This means, for example, that market research and fundraising telephone calls would not be restricted under the Prohibition's terms.
There are two limited exceptions to the Prohibition: telemarketing sales calls made (1) in response to an express written or verbal request by the customer; or (2) in connection with a continuing, established business relationship (unless the customer has stated their wish to no longer receive the telemarketing sales calls of that telemarketer).
Governor Cuomo's intent in enacting the Prohibition is evident by his statement that "On a good day telemarketer calls are a nuisance - during times of emergency they can impede residents' ability to get the information they need to stay safe."5
In light of the issuance of the Declaration, unsolicited telemarketing sales calls should not be made from New York or to individuals or businesses in New York until September 7, 20206 unless one of the two exceptions apply.
- governor.ny.gov/declaring-disaster.
- The term "telemarketer" also includes "any person who directly controls or supervises the conduct of a telemarketer." N.Y.G.B.L. Section 399-Z(1-h).
- See N.Y.G.B.L. Sections 399-Z(5-a) ("Section 5-a") and 399-PP(7-f) enacted December 18, 2019.
- Under the Prohibition, the term "telemarketing sales call" means a telephone call made by a telemarketer or by any outbound telephone calling technology that delivers a prerecorded message to a customer or to a customer’s voicemail or answering machine service for the purpose of inducing payment or the exchange of any other consideration for any goods or services. N.Y.G.B.L. Section 399-Z(1-j).
- governor.ny.gov/governor-cuomo.
- Please note that this date is subject to modification or extension.
Client Alert 2020-107
