November 26, 2022

Volume XII, Number 330


November 23, 2022

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New Emergency Declaration in New York Furthers Ban on Unsolicited Telemarketing Calls

On 5 August 2021, Governor Andrew Cuomo continued a statewide disaster emergency due to gun violence that he first declared on 6 July 2021. As previously discussed in our March 2020 post about Governor Cuomo’s COVID-19 emergency declaration, under New York’s Do Not Call Registry statute and its Telemarketing and Consumer Fraud and Abuse Protection Act, it is illegal to knowingly make unsolicited telemarketing sales calls to areas of the state under an emergency declaration. The Governor’s latest executive order declaring a state of emergency once again triggers this prohibition on a statewide basis.

Under New York’s Do Not Call Registry statute, “telemarketing sales calls” include calls made by telemarketers and calls made using prerecorded or artificial voice technology. The definition of “unsolicited telemarketing sales calls” excludes calls in response to an unsolicited customer inquiry and calls to a customer with whom the caller has an existing business relationship. “Telemarketing” excludes calls “intended to implement or complete a transaction to which the customer has previously consented,” New York GBS § 399-z(1)(i). But because of ambiguity in the statute, it is unclear whether this exclusion is incorporated into the definition of “telemarketing sales calls.” Additionally, new amendments to the Do Not Call Registry law, which became effective on 12 August 2021, also expand the definition of telemarketing to include text messaging.

New York’s Telemarketing and Consumer Fraud and Abuse Protection Act, New York GBS § 399-pp, does not incorporate an exclusion for completing transactions. For businesses marketing to other for-profit businesses the Telemarketing and Consumer Fraud and Abuse Prevention Act provides an exemption from its requirements for telephone calls between a telemarketer and any for-profit business, except calls involving the retail sale of nondurable office or cleaning supplies. New York GBS § 399-pp(10)(b)(4). The Do Not Call Registry statute, however, does not contain any similar exemption. The telemarketing ban in the Do Not Call Registry therefore may still apply to businesses making telemarketing calls and text messages to for-profit businesses even if those calls would be exempt from the ban under the Telemarketing and Consumer Fraud and Abuse Prevention Act.

Governor Cuomo’s 6 July 2021, executive order states that the disaster declaration will continue “until further notice,” meaning that the telemarketing ban will be in effect for an indefinite period of time. Violating the ban could lead to civil penalties. Businesses calling New York residents therefore should carefully review their procedures to ensure they are complying with New York law.

Copyright 2022 K & L GatesNational Law Review, Volume XI, Number 232

About this Author

Joseph C. Wylie II, KL Gates Law Firm, Commercial Litigation Attorney

Mr. Wylie’s practice focuses on complex class-action defense and complex commercial litigation with a particular emphasis on consumer and securities matters. He represents clients in defending against a wide range of individual and class-action consumer claims, including consumer fraud actions and claims brought under the Telephone Consumer Protection Act. He also represents investment advisers and mutual fund families in connection with government investigations and investor claims, including claims made under the Investment Company Act. Mr. Wylie also represents...

Molly K. McGinley, KLGates Law Firm, Complex Litigation Attorney

Molly K. McGinley concentrates her practice at K&L Gates in commercial litigation with a focus on complex litigation, including investment company litigation, securities litigation and consumer class action defense. Ms. McGinley is a member of the firm’s Securities and Transactional Litigation Practice and Class Action Litigation Defense Groups. Ms. McGinley has litigated in numerous state and federal jurisdictions, representing a broad range of clients, including small companies, Fortune 500 Companies and investment advisers. She has handled various commercial...

Nicole Mueller, KL Gates Law Firm, Securities and Transactional Litigation Attorney

Ms. Mueller’s practice is focused in litigation under the federal and state securities laws and litigation arising out of mergers and acquisitions, other transactions and corporate governance matters. Her experience includes representing investment advisers, corporate officers and directors, and independent trustees in derivative lawsuits, investigations, and actions brought pursuant to Section 36(b) of the Investment Company Act of 1940. Ms. Mueller also practices in the areas of complex commercial litigation and arbitration, regulatory disputes, and employment law....

Jonathan R. Vaitl Litigation Attorney K&L Gates Harrisburg, PA

Jonathan Vaitl is an associate at the firm’s Harrisburg office. He is a member of the litigation practice area. 

Representative Experience 

  • Represented client on pro bono basis in preparing and filing immigration documents to secure special visa for victims of criminal activity
  • Conducted research and analysis regarding privacy policies in various states in relation to the commercial use of unmanned aircraft
  • Assisted with development of Safe Harbor Agreement related to the Endangered Species Act for clients in timber industry
  • Conducted...