On March 1, 2020, New York's "Nuisance Call Act" will go into effect, bringing significant change to the State's existing telemarketing law. The legislation, which was signed into law by Governor Andrew Cuomo on December 2, 2019, is intended to close a loophole in New York's Do Not Call Law, which originally took effect in 2001.
How Does the Act Change New York Telemarketing Law?
New Telemarketing Rules
The Nuisance Call Act amends Section 399-z of New York's General Business Law to add two new requirements for telemarketers doing business in the State. Under the new law:
- a telemarketer or seller must inform the customer that he or she may request that his or her telephone number be added to the seller's entity specific do-not-call ("DNC") list. If the customer opts to do so, the telemarketer must immediately end the call and add the number to its internal DNC list; and
- a telemarketer or seller cannot "transmit, share, or otherwise make available" a customer's contact information, including name, telephone number, or email address, which has been provided to the telemarketer by the customer, to any third party "without the express agreement of the customer in writing or in electronic format," unless required by law, court order, or subpoena.
Importantly, this law does not change how New York's Do Not Call Law defines several critical terms. Under the existing law, the term "telemarketer" does not include any caller that calls with the costumer's prior consent. Accordingly, these telemarketing law amendments appear to only apply to cold callers. In addition, the law contains a safe harbor for companies that can prove that they accessed a version of the Federal Trade Commission's DNC Registry no more than thirty-one days prior to the call. If the company can demonstrate that, as part of its routine business practices, it has procedures in place to comply with New York's Do Not Call Law, it will not face liability. Lastly, the law only affects calls made to customers located within New York State.
How the Telemarketing Law Affects Business
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. Notwithstanding the stiff penalties for non-compliance, it is important to note that the Nuisance Call Act merely codifies best practices. Businesses that are active in this space should already afford customers the right to add their numbers to internal DNC lists. The Nuisance Call Act goes a step further and now requires that telemarketers disclose this right during their calls to customers.
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