Within a few short weeks, Covid-19 ("Covid-19"), the disease caused by the novel coronavirus SARS-CoV-2, has affected nearly all aspects of life in America. The United States has declared a state of emergency, and multiple states of the Union have followed suit. In addition to Covid-19's pervasive effects on business, companies engaged in telemarketing also need to be concerned with special restrictions that they may face in jurisdictions that have declared states of emergency.
What is Prohibited During a State of Emergency?
Impact on Telemarketing Practices
Calls "made for emergency purposes" are expressly exempted from the restrictions contained in the federal Telephone Consumer Protection Act ("TCPA"). Calls made for emergency purposes do not require prior express (or prior express written) consent of the called party. While the term "emergency" is defined broadly under the TCPA, it does not present a loophole for businesses attempting to continue telemarking within certain jurisdictions that have declared states of emergency. While many jurisdictions have declared states of emergency due to Covid-19, only two (2) states, New York and Louisiana, have laws which specifically prohibit certain telemarketing activities during times of emergency.
State Specific Rules for Telemarketers
On March 7, 2020, Governor Andrew Cuomo declared a state of emergency in New York State. This order is currently scheduled to extend until September 20, 2020. New York's Telemarketing and Consumer Fraud and Abuse Prevention Act and amendments make it unlawful for any telemarketer doing business in New York to 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." Critically, New York's telemarketing ban only applies to unsolicited telemarketing sales calls. This means that businesses can still call customers who have consented to be called by them or with whom they have an established business relationship. Businesses that violate New York's ban face steep penalties of up to $11,000 per violation.
Similarly, Louisiana declared a public health emergency on March 11, 2020. Under Louisiana law, telemarketers are prohibited from making unsolicited calls to consumers during emergencies. Consistent with New York, the Louisiana law allows for calls to consumers who requested such communication or with whom an existing business relationship exists. However, unlike New York, the Louisiana law has a number of additional exceptions that virtually swallow the prohibition. Specifically, the prohibition does not apply to:
- calls made to collect a debt;
- calls made by approved non-profit organizations; and
- calls made to conduct market research.
Under normal circumstances, telemarketing law can be immensely complicated and vary dramatically between jurisdictions. During declared public health and states of emergency, it is recommended to avoid placing telemarketing calls unless you are offering crucial products or services.
It is important that telemarketers work with experienced marketing attorneys to guide them through state and federal laws in order to avoid regulatory trouble.
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