On August 14, 2012, New York Governor Andrew Cuomo signed legislation, which will regulate all telemarketers doing business in the State and strengthen consumer protections relating to pre-recorded telemarketing messages. Introduced on June 12, 2012 by Assembly member Didi Barrett (AD 103), the new law aligns significantly with those provisions of the federal Telephone Consumer Protection Act and the Telemarketing Sales Rule, particularly with respect to the requirements relating to obtaining a consumer’s “express written consent” to receive pre-recorded telemarketing messages. The bill has an effective date 90 days after passage.
The new substantive provisions relate to express written consent requirements and heightened opt-out mechanisms. Under the new law, telemarketers may not deliver a pre-recorded message without the express written agreement of the consumer that (1) was obtained only after the telemarketer’s clear and conspicuous disclosure that the purpose of the agreement is to authorize telemarketing calls to that customer; (2) was not executed as a condition of purchasing any goods or service; (3) evidences the willingness of the consumer to receive telemarketing sales calls from a specific seller; and (4) includes the consumer’s telephone number and signature.
In addition, the new law requires that telemarketers provide customers with more opt-out mechanisms then currently are mandated. Under existing law, a telemarketer delivering a pre-recorded message to a live customer must offer an automated interactive voice and/or keypress activated opt-out mechanism to assert a do-not-call request. The new law, however, further requires that the call also include a mechanism to allow the consumer to automatically add the number called to the seller’s entity-specific do-not-call list. Once this option is invoked, the telemarketer must immediately end the call. Further, if the call is answered by a consumer’s voicemail, the new law requires that the telemarketer’s message include a toll-free number at which the consumer may add the number called to the seller’s entity-specific do-not-call request. Again, once this option is invoked, the telemarketer must immediately end the call.
In addition, the new law requires that all telemarketers doing business in New York register with the Department of State, which will now have the authority to revoke or suspend the registration of non-compliant telemarketing companies and impose fines and/or misdemeanor charges. According to a press release from Governor Cuomo’s office, fewer than 30 telemarketers are currently registered in New York. In contrast, neighboring New Jersey has over 500 out-of-state telemarketers registered to do business in that state.
The legislation enacts substantial changes to telemarketing activities conducted in the State of New York, and all affected companies should familiarize themselves accordingly.