Coronavirus Curtails Telemarketing in New York

Gov. Andrew Cuomo on March 7, 2020, declared a state of emergency in light of the spread of the novel coronavirus (COVID-19) in New York. This triggered the state's newly enacted legislation that prohibits telemarketers from making unsolicited telemarketing sales calls during a state of emergency.

The Law on Unsolicited Telemarketing Sales

New York General Business Law § Section 399-z defines unsolicited telemarketing sales calls as "any telemarketing sales call other than a call 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."

The prohibition of unsolicited telemarketing sales calls during a state of emergency initially emerged as one of New York's many responsive measures in the event of extreme weather. However, the restrictive measure applies to all states of emergency, irrespective of the catalyst and including the current one prompted by the spread of COVID-19. As Gov. Cuomo explained, during an emergency, telemarketing sales calls can "impede residents' ability to get the information they need to stay safe." The goal of this prohibition is to keep open lines of communication that are crucial to circulating important notifications and information to residents during a state of emergency.

Penalties and Other Considerations

Companies that are in violation of New York's telemarketing prohibition during a state of emergency may expose themselves to risks, both reputational and financial. Although the amendment does not specify the penalties for violating the prohibition during a state of emergency, businesses that violate New York's telemarketing sales rule under any circumstance are subject to fines of up to $11,000. GBL § 399-z also provides a private right of action, and plaintiffs can recover actual damages or $50, whichever is greater, and up to $1,000 for willful violations. These penalties are in addition to other potential fines and damages permitted under the analogous Telephone Consumer Protection Act.

Recommendations

Companies should avoid making any unsolicited telemarketing sales calls to any person in a county, city, town or village within New York until the current state of emergency is lifted. Email communication, however, is permitted, so long as it complies with the relevant laws. Companies should always be cognizant of remaining in compliance with both state and federal laws regarding telemarketing, including compliance with the Federal Trade Commission's Do Not Call Registry.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.