On July 13, 2021, Governor Andrew M. Cuomo signed laws that expands New York state’s definition of “telemarketing” to incorporate advertising by textual content messages.1 Below the laws, which turned efficient on August 12, 2021, “telemarketing gross sales calls” will embody an “digital messaging textual content made immediately or not directly by a telemarketer … wherein such … digital messaging textual content is for the aim of inducing cost or the change of every other consideration of any items or providers.”2 Because of this lots of New York’s necessities for telemarketing telephone calls will now apply to telemarketing textual content messages, together with a prohibition on unsolicited gross sales texts to numbers on the federal “Do Not Name” registry.
Like most states, New York imposes restrictions and necessities on telemarketing. New York defines “telemarketing” as “any plan, program, or marketing campaign that’s performed to induce cost or the change of every other consideration for any items or providers …”3 Over time, New York has entered numerous amendments to the state telemarketing statute to reinforce management of telemarketing actions.4 Specifically, state legislation imposes a lot of necessities and prohibitions associated to telemarketing gross sales calls, together with:
- Limiting telemarketing from 8AM to 9PM on the buyer’s location, until the shopper has given categorical consent to the decision at a distinct time;
- Requiring the telemarketer to offer, in a transparent and coherent method initially of every name, data such because the telemarketer’s identify, the aim of the decision, and whether or not the decision is recorded;
- Requiring opt-out mechanisms for pre-recorded messages and in-person telemarketing;
- Requiring stay voice outbound telemarketers to tell customers they might be added to the vendor’s inner do-not-call (DNC) record;
- Requiring the telemarketer to create data of its telemarketing actions for a interval of 24 months;
- Prohibiting any telemarketer to knowingly have any caller identification service to transmit deceptive, inaccurate, or false caller identification data, offered it could not be a violation to substitute the identify or phone variety of the individual or vendor on behalf of which a telemarketing name is positioned;
- Prohibiting any telemarketer from making any unsolicited telemarketing gross sales name to any buyer when that buyer’s phone quantity has been on the nationwide “Do Not Name” registry for a interval of 31 days previous to the date the decision is made;
- Prohibiting any telemarketer doing enterprise in New York to knowingly make an unsolicited telemarketing gross sales name to any individual in a county, metropolis, city, or village underneath a declared state of emergency or catastrophe emergency; and
- Prohibiting any telemarketer to transmit, share, or in any other case make obtainable any buyer’s contact data, together with identify, phone quantity, or e-mail tackle, which has been offered to such telemarketer by such buyer, to any individual, company, or different entity with out the categorical settlement of the shopper in writing or in digital format, until required by legislation.5
Textual content messages have beforehand been thought-about exempt from the above necessities, however, with the laws’s expanded definitions, these necessities now apply to telemarketing texts and calls.
Advertising Textual content Messages Are Now Telemarketing Gross sales Calls in New York
In increasing the statute to incorporate “digital messaging texts,” Governor Cuomo reasoned this laws “closes this annoying loophole [of text messages being exempt under the definition] and can assist guarantee our legal guidelines are modernized to confront the wants of New Yorkers.”6 Particularly, the brand new laws amends the definition of “telemarketing gross sales name” to a “phone name or digital messaging textual content made immediately or not directly by a telemarketer or by any outbound phone calling know-how that delivers a prerecorded message to a buyer or to a buyer’s voicemail or answering machine, wherein such phone name or digital textual content message is for the aim of inducing cost or the change of every other consideration for any items or providers …”7 The laws additional defines “electronic mail textual content” as “real-time or close to real-time non-voice messages in textual content kind over communications networks, and consists of the transmission of writing, indicators, indicators, footage, and sounds of every kind by support of wire, cable or different like connection between the factors of origin and reception of such transmission.”8 Below this growth, any prohibition or requirement that’s typically relevant to telemarketing gross sales calls now applies to textual content messages. Considerably, a telemarketer can not ship any “unsolicited” gross sales texts to a phone quantity that has been on the nationwide “Do Not Name” registry for 31 days previous to the date the textual content is shipped. The definition of “unsolicited” gross sales texts excludes texts in response to an categorical written or verbal request by the shopper or in reference to a longtime enterprise relationship that has not been terminated by both occasion.9
This new laws may have implications for all companies participating in telemarketing by way of textual content messages in New York as a result of all prohibitions and necessities relevant to telemarketing gross sales telephone calls now additionally apply to advertising textual content messages. Companies that ship advertising textual content messages to customers with a New York space code ought to evaluate their inner insurance policies and practices to make sure they adjust to the brand new necessities.
 See typically N.Y. GEN. BUS. LAW § 399-z, amended by 2021 N.Y. Sess. Legal guidelines Ch. 239 (A. 6040).
 Part 399-z(1)(j).
 Part 399-z(1)(i). Below this definition, purely informational communications fall exterior the scope of this statute.
 See, e.g., S. S4777A, 2021-2022 Leg., Reg. Sess. (N.Y. 2021).
 See typically Part 399-z.
 “Laws (S.3941/A.6040) Provides Textual content Messages to State’s Definition of Telemarketing in Addition to Robocalls, Giving New Yorkers Extra Safety,” Governor Andrew M. Cuomo (July 13, 2021), https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-protecting-new-yorkers-telemarketing-text-message.
 Part 399-z(1)(j).
 Part 399-z(1)(n).
 Part 399-z(1)(okay).