With a state of emergency being called in many jurisdictions across the United States, does that mean you can't make telephone research calls?

The Insights Associatoin has received a couple of questions about this, including one from a client concerned that it restricts even online research invitations, but we've seen no such indications. In many states, existing laws clamp down on telemarketing calls during a declared state of emergency, but not necessarily even all of those. While there may be reasons to conduct research differently during the COVID-19 crisis, such laws do not seem to make the list.

For instance, Section 399-PP and Section 399-Z of New York State's General Business Law restricts telemarketing calls and sets requirements and responsibilities regarding the state's do not call registry. This also now prohibits unsolicited telemarketing sales calls during a state of emergency. Per Per 399-PP(7), "It 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." Also, per 399-Z...: "It shall be unlawful for any telemarketer doing business in this state 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." Penalties for violating these statutes are now up to $11,000 per violation, but each violation would also be deemd to be a "deceptive act and practice" which could be punished by the state Attorney General or private lawsuits for further penalties (including an extra $1,000 per willful violation).

However, note the that the two key definitions in Section 399-P clearly implicate telemarketing calls, not bona fide marketing research telephone calls:

  1. Telemarketer means "any person, who, for financial profit or commercial purposes in connection with telemarketing, either initiates, or initiates and receives telephone calls to or from a customer when the customer is in this state or any person who directly controls or supervises the conduct of a telemarketer. For the purposes of this section, ;commercial purposes' shall mean the sale or offer for sale of goods and services."
  2. Telemarketing means "any plan, program or campaign which is conducted to induce payment or the exchange of any other consideration for any goods or services by use of one or more telephones and which involves more than one telephone call by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing does not include the solicitation of sales through any media other than by telephone calls."

The three key definitions in 399-Z similarly implicitly exclude telephone calls for bona fide marketing research:

  1. telemarketing is defined as "any plan, program or campaign that is conducted to induce payment or the exchange of any other consideration for any goods or services that involves more than one telephone call by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing does not include the solicitation of sales through media other than by telephone calls and does not include calls intended to implement or complete a transaction to which the customer has previously consented";
  2. telemarketing sales call is defined as "a telephone call made 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 service for the purpose of inducing payment or the exchange of any other consideration for any goods or services"; and
  3. unsolicited telemarketing sales call means "any telemarketing sales call other than a call made: (i) in response to an express written or verbal request by the customer; or (ii) in connection with an established business relationship, which has not been terminated by either party, unless such customer has stated to the telemarketer that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer."

We are not aware of any states that prohibit marketing research calls during a state of emergency, although we must note that such prohibitions may be in effect for some “robocalls,” “robopolls,” and calls made with artificial or prerecorded voice, interactive voice response (IVR) systems, Touchtone Data Entry (TDE) or automatic dialing announcing devices (ADAD), depending on the state.

If an Insights Association member is facing trouble from your state on this front, get in touch with us.

Have you got some nagging compliance questions facing your marketing research and data analytics work? Now is a good time to review the resources available from the Insights Association, including in our Legal Affairs library, and portals dedicated to GDPR compliance and CCPA compliance.

This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.