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COVID-19-Related Telemarketing Developments

We continue to monitor the effects of the COVID-19 pandemic on telemarketing regulations. The FCC has allowed health care providers to place emergency automated calls and text messages related to COVID-19, but three states have seen new telemarketing restrictions triggered by state-of-emergency declarations. Meanwhile, California is considering changes to its telemarketing statute unrelated to the pandemic. The following summarizes these recent developments:

FCC: As COVID-19 spreads across the nation, the Federal Communications Commission issued a declaratory ruling easing restrictions on hospitals, health care providers and other government officials in order to allow them to use automated calls and text messages to communicate urgent information about COVID-19. Because of the pandemic, health care providers and government officials “may lawfully communicate information about the novel coronavirus as well as mitigation measures without violating federal law. In determining whether a call qualifies for the COVID-19 emergency exception, the FCC will look to the identity of the caller and content of the call. The caller must be from a hospital, or be a health care provider, state or local health official, or other government official or a person under the express direction of such organization or person and acting on its behalf. Additionally, the content of the call must be solely informational, made necessary because of the COVID-19 outbreak and directly related to the imminent health or safety risk arising out of the COVID-19 outbreak.

WEST VIRGINIA: West Virginia declared a state of emergency, which triggered the state’s criminal penalties for “using automated telephone calls to disseminate false, misleading or deceptive information regarding matters effecting or effected by a proclaimed state of emergency or state of preparedness.” W. Va. Code § 15-5-19b.  This prohibition is limited to automated calls and only restricts “false, misleading or deceptive information” but not telemarketing in general. Each illegal call can result in confinement in jail up to one year, a fine of up to $5,000 or both.

NEW YORK: As this blog has previously reported, New York declared a state of emergency that extends through at least September 20, 2020. That declaration triggered two statutory provisions prohibiting unsolicited consumer telemarketing calls during a state of emergency. Business-to-business calls do not appear to trigger either provision.

Both emergency-related provisions, GBL § 399-Z(5-a) and GBL § 399-PP(7)(f), state “[i]t shall be unlawful for any telemarketer 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”.

The emergency ban applies to unsolicited consumer calls only. Under Section 399-Z, “[u]nsolicited telemarketing sales calls” do not include calls responding to an express request by the customer or in connection with an existing established business relationship.

Section 399-pp does not define “unsolicited telemarketing sales call,” but exempts: (1) telephone calls for the purposes of debt collection if compliant with the Federal Fair Debt Collection Practices Act; (2) calls where a sale is not complete until a face-to-face sales presentation or a meeting between the telemarketer and customer occurs; (3) customer calls to a telemarketer (as long as they are not the result of a solicitation by the telemarketer); and (4) calls between a telemarketer and most for-profit businesses. Both provisions require knowing violations.

LOUISIANA: Like New York, Louisiana law contains a statute barring telephonic solicitation activities during a state of emergency. However, the bar is subject to certain exceptions, including calls made at the request of the recipient; calls made pursuant to an existing business relationship; calls relating to an outstanding debt or contract; calls made by federally approved non-profit organizations; and calls made to conduct market research.  La. Rev. Stat. 45:844.31. Louisiana’s law extends to “any voice or data communication made by a telephonic solicitor” but is limited to calls made to “residential telephonic subscribers”. It is not clear whether Louisiana has taken the necessary administrative steps to trigger the telemarketing prohibition, but violations are punishable by a fine of up to $1,500 per call to recipients under the age of 65, and a fine of up to $3,000 per call to recipients age 65 or older. In addition, entities who violate the ban by placing a call to an individual listed on the Commission’s “Do Not Call” program is also subject to an additional administrative penalty of up to $10,000.

CALIFORNIA: California has not enacted any new restrictions due to the pandemic, but there is legislation under consideration that would modernize the definition of an automatic dialing device and limit the ability to use such device under the existing business relationship exception. If there is no “significant human involvement” in the calling process, such device will be more likely to be classified as an automatic dialing device. Any prior consent that a consumer may have provided would be revocable at any time and in any reasonable manner. As of May 28, 2020, no legislation has been passed.

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