On July 13, 2021, Governor Andrew M. Cuomo signed legislation that expands New York state's definition of "telemarketing" to include marketing by text messages.1 Under the legislation, which became effective on August 12, 2021, "telemarketing sales calls" will include an "electronic messaging text made directly or indirectly by a telemarketer … in which such … electronic messaging text is for the purpose of inducing payment or the exchange of any other consideration of any goods or services."2 This means that many of New York's requirements for telemarketing phone calls will now apply to telemarketing text messages, including a prohibition on unsolicited sales texts to numbers on the federal "Do Not Call" registry.
Background
Like most states, New York imposes restrictions and requirements on telemarketing. New York defines "telemarketing" as "any plan, program, or campaign that is conducted to induce payment or the exchange of any other consideration for any goods or services …"3 Over the years, New York has entered various amendments to the state telemarketing statute to enhance control of telemarketing activities.4 In particular, state law imposes a number of requirements and prohibitions related to telemarketing sales calls, including:
- Limiting telemarketing from 8AM to 9PM at the customer's location, unless the customer has given express consent to the call at a different time;
- Requiring the telemarketer to provide, in a clear and coherent manner at the beginning of each call, information such as the telemarketer's name, the purpose of the call, and whether the call is recorded;
- Requiring opt-out mechanisms for pre-recorded messages and in-person telemarketing;
- Requiring live voice outbound telemarketers to inform consumers they may be added to the seller's internal do-not-call (DNC) list;
- Requiring the telemarketer to create records of its telemarketing activities for a period of 24 months;
- Prohibiting any telemarketer to knowingly have any caller identification service to transmit misleading, inaccurate, or false caller identification information, provided it would not be a violation to substitute the name or telephone number of the person or seller on behalf of which a telemarketing call is placed;
- Prohibiting any telemarketer from making any unsolicited telemarketing sales call to any customer when that customer's telephone number has been on the national "Do Not Call" registry for a period of 31 days prior to the date the call is made;
- Prohibiting any telemarketer doing business in New York to knowingly make an unsolicited telemarketing sales call to any person in a county, city, town, or village under a declared state of emergency or disaster emergency; and
- Prohibiting any telemarketer to transmit, share, or otherwise make available any customer's contact information, including name, telephone number, or email address, which has been provided to such telemarketer by such customer, to any person, corporation, or other entity without the express agreement of the customer in writing or in electronic format, unless required by law.5
Text messages have previously been considered exempt from the above requirements, but, with the legislation's expanded definitions, these requirements now apply to telemarketing texts and calls.
Marketing Text Messages Are Now Telemarketing Sales Calls in New York
In expanding the statute to include "electronic messaging texts," Governor Cuomo reasoned this legislation "closes this annoying loophole [of text messages being exempt under the definition] and will help ensure our laws are modernized to confront the needs of New Yorkers."6 Specifically, the new legislation amends the definition of "telemarketing sales call" to a "telephone call or electronic messaging text made directly or indirectly 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, in which such telephone call or electronic text message is for the purpose of inducing payment or the exchange of any other consideration for any goods or services …"7 The legislation further defines "electronic message text" as "real-time or near real-time non-voice messages in text form over communications networks, and includes the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable or other like connection between the points of origin and reception of such transmission."8 Under this expansion, any prohibition or requirement that is generally applicable to telemarketing sales calls now applies to text messages. Significantly, a telemarketer cannot send any "unsolicited" sales texts to a telephone number that has been on the national "Do Not Call" registry for 31 days prior to the date the text is sent. The definition of "unsolicited" sales texts excludes texts in response to an express written or verbal request by the customer or in connection with an established business relationship that has not been terminated by either party.9
Implications
This new legislation will have implications for all businesses engaging in telemarketing through text messages in New York because all prohibitions and requirements applicable to telemarketing sales phone calls now also apply to marketing text messages. Businesses that send marketing text messages to consumers with a New York area code should review their internal policies and practices to ensure they comply with the new requirements.
For more information on the new legislation or any related matter, please contact Alyssa Worsham, Christine Au-Yeung, or another member of Wilson Sonsini's trademark and advertising practice.
[1] See generally N.Y. GEN. BUS. LAW § 399-z, amended by 2021 N.Y. Sess. Laws Ch. 239 (A. 6040).
[3] Section 399-z(1)(i). Under this definition, purely informational communications fall outside the scope of this statute.
[4] See, e.g., S. S4777A, 2021-2022 Leg., Reg. Sess. (N.Y. 2021).
[5] See generally Section 399-z.
[6] “Legislation (S.3941/A.6040) Adds Text Messages to State’s Definition of Telemarketing in Addition to Robocalls, Giving New Yorkers More Protection,” Governor Andrew M. Cuomo (July 13, 2021), https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-protecting-new-yorkers-telemarketing-text-message.
