New York’s telemarketing statute, General Business Law § 399-z, reaches sales texts as well as sales calls. It limits telemarketing to 8 a.m. through 9 p.m., bars unsolicited sales calls into areas under a declared emergency, and requires 24 months of records. The Department of State enforces it, with fines of up to $20,000 per violation after a hearing. The statute gives consumers no damages remedy of its own, and its safe harbor protects a business that can prove its scrub dates, written procedures, and training.
Does New York’s telemarketing law cover text messages?
Yes. Section 399-z defines a telemarketer as a person who “makes telemarketing sales calls or electronic messaging texts to a customer when the customer is in this state.” The definitions of telemarketing, telemarketing sales call, and unsolicited telemarketing sales call all name texts alongside calls, so a New York text claim doesn’t depend on the federal debate over whether a text is a “call.”
Two limits in the definitions matter to a defendant. Telemarketing involves “more than one telephone call or electronic messaging text,” and it doesn’t include messages “intended to implement or complete a transaction to which the customer has previously consented.” A shipping update or a payment confirmation for an order the customer placed falls outside the statute.
The statute also protects only a “customer,” which it defines as “any natural person who is a resident of this state.” A sales call to a company’s main line isn’t a call to a customer under that definition, though a text to a sole proprietor’s cell phone may be.
What does the statute require of a business that calls or texts?
Five rules do most of the work. Under subdivision 2, no telemarketer or seller may engage in telemarketing “at any time other than between 8:00 A.M. and 9:00 P.M. at the location of the customer” unless the customer consented to a different time. The same subdivision requires disclosures “no later than thirty seconds from the commencement of the call,” and the first two must be the caller’s name with the seller it’s calling for, followed by the option to be added to the seller’s own do-not-call list.
The thirty-second rule was written for voice calls, and it fits texts badly. The safer course for a text program is to put the seller’s name and a working opt-out instruction in the first message of every campaign, since a plaintiff will read the statute’s call language onto texts if the business gives it room.
The other three rules are familiar from federal law, with New York twists. Subdivision 5 bars unsolicited sales calls to a number that has been on the national Do Not Call Registry “for a period of thirty-one days prior to the date the call is made.” Subdivision 6 bars prerecorded sales calls without the customer’s “express agreement, in writing.” And subdivision 11 requires telemarketers and sellers to keep “records relating to its telemarketing activities” for twenty-four months.
The rule that catches lead generators is subdivision 10. It provides that no telemarketer or seller shall “transmit, share, or otherwise make available any customer’s contact information” that the customer provided “without the express agreement of the consumer in writing or in electronic format.” A business that sells or shares New York leads needs that agreement in its own records, not just in the buyer’s contract.
What is the emergency telemarketing ban?
A rule with no federal counterpart. Subdivision 5-a makes it unlawful for a 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.” The ban follows the declaration, so a campaign that was lawful on Monday can become unlawful on Tuesday in the counties a storm or flood declaration covers.
Energy companies learned this during the pandemic. In Matter of Sunsea Energy LLC v. New York State Public Service Commission, 229 A.D.3d 1021 (3d Dep’t 2024), the Commission found “unsolicited telemarketing sales calls during the COVID-19 pandemic declared state of emergency” among 116 complaints and revoked the company’s eligibility to sell energy in the state. The Appellate Division affirmed. The court noted that the Commission stated “that it did not have jurisdiction to decide this question” under § 399-z and treated the calls as a violation of its own marketing rules.
That’s the practical lesson for regulated businesses. A licensing agency doesn’t need to enforce § 399-z to punish the conduct it describes. The same opinion records that the company blamed “a rogue marketing vendor,” and the Commission found the vendor it named wasn’t the vendor listed on its compliance documents. Vendor lists that don’t match the actual calling vendors will undercut that defense.
Who enforces § 399-z, and can a consumer sue?
The Department of State enforces it. Subdivision 14 provides that after a hearing, the Secretary of State may “assess a fine not to exceed twenty thousand dollars for each violation,” and the proceeding is governed by the State Administrative Procedure Act. The statute doesn’t give consumers a damages claim.
Plaintiffs work around that gap in two ways. The first is the federal TCPA, which allows a private plaintiff to recover up to $500 per call or text under 47 U.S.C. § 227(c)(5) for Do Not Call violations, and a court may increase that to up to three times the amount if it finds the violation was willful or knowing. The second is New York’s deceptive practices statute, General Business Law § 349. Its private remedy allows recovery of actual damages or “fifty dollars, whichever is greater,” which a court may increase up to $1,000 if it finds the defendant “willfully or knowingly violated this section.”
A § 349 claim built on a telemarketing violation carries elements that an unwanted text usually can’t meet. The New York Court of Appeals held in Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995), that the plaintiff must show conduct that is consumer-oriented, and that “A prima facie case requires as well a showing that defendant is engaging in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof.” A properly identified text sent to a Registry number misleads no one about anything, and a defendant should press that point from the first motion.
| Claim | Statute | Who brings it | Exposure | Defenses that answer it |
|---|---|---|---|---|
| Calls or texts to Registry numbers | GBL § 399-z(5) | Department of State | Fine up to $20,000 per violation after a hearing | Express request, established business relationship, safe harbor |
| Calls into a declared emergency area | GBL § 399-z(5-a) | Department of State | Fine up to $20,000 per violation after a hearing | No knowing call, solicited or relationship-based message |
| Sharing customer contact information | GBL § 399-z(10) | Department of State | Fine up to $20,000 per violation after a hearing | Written or electronic agreement, legal requirement |
| Deceptive practice claim | GBL § 349(h) | Consumer | Actual damages or $50, up to $1,000 if willful or knowing | Not consumer-oriented, nothing misleading, no injury |
| Federal Do Not Call claim | 47 U.S.C. § 227(c)(5) | Consumer | Up to $500 per violation, up to three times that if willful or knowing | Consent, business relationship, fewer than two calls in 12 months |
Does the safe harbor protect a business that made a mistake?
It can, if the paperwork exists. Subdivision 15 provides that “A person shall not be held liable for violating this section if” three conditions are met. The business must have obtained a version of the Registry no more than thirty-one days before the call, and it must show that “as part of the person’s routine business practice at the time of an alleged violation, it has established, implemented and updated written policies and procedures related to the requirements of this section.” It must also have trained its personnel, and it must maintain and be able to produce records proving both.
The word “updated” deserves attention. A compliance manual written in 2019 that never mentions texts, the emergency ban, or the data-sharing rule is a weak exhibit for a safe harbor that requires updated procedures. A one-page revision log and dated training attendance sheets cost almost nothing, and they’re the documents a hearing officer will ask for first.
What to pull when a New York telemarketing complaint arrives
- Put a litigation hold on the call and text logs for the complainant’s number, the platform records showing send times in the recipient’s time zone, and the consent or purchase record behind the number.
- Export the company’s internal do-not-call history for the number, with the date of every opt-out and the date it reached the suppression list.
- Pull the Registry download dates for each campaign, since the safe harbor requires a version no more than thirty-one days old.
- Collect the vendor and lead-source contracts, any agreement authorizing the sharing of the customer’s contact information, the message templates, and any recorded call files.
- Have a lawyer review the file before responding to the Department of State, the complainant, or a demand letter, and before offering anything to settle.
Most private New York claims are federal TCPA claims with a § 349 count attached, and lawyers defending New York telemarketing claims will usually attack the state count on its elements while defending the federal count on consent and Registry records. The earlier posts on state mini-TCPA laws for texting, TCPA preemption of state telemarketing laws, and Arizona’s telephone solicitation law cover how other states handle the same questions.
Questions about New York’s telemarketing law
Does New York keep its own do-not-call list?
No. Subdivision 4 authorizes the Department of State to have the national Do Not Call Registry “serve as the New York state no telemarketing sales calls statewide registry.” A business that scrubs against the national Registry within thirty-one days of each campaign has covered New York’s list. Texas and Florida work differently, as the post on state do-not-call registries explains.
Does the law reach a business located outside New York?
Yes. The statute defines doing business in the state to include calls “from a location outside of this state to consumers residing in this state,” and the telemarketer definition asks only whether the customer is in New York. A California company texting New York residents is covered, and the emergency ban applies to it in the same way.
Does a past purchase let a business keep texting?
Usually, until the customer says stop. The statute excludes messages sent “in connection with an established business relationship, which has not been terminated by either party.” That relationship ends for this purpose once the customer tells the telemarketer it no longer wants sales calls, and every later message is unsolicited.
Are prerecorded calls treated differently?
Yes. A prerecorded sales call requires a signed written agreement that the customer gave after a clear disclosure, that wasn’t a condition of purchase, and that names the seller and includes the customer’s number. Prerecorded calls also need an automated opt-out mechanism, and calls that may reach voicemail need a toll-free opt-out number.
Defending New York telemarketing and text claims
If your company is accused of calling or texting New York numbers in violation of § 399-z, the Registry download dates and the written procedures in place at the time usually decide whether the safe harbor applies. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving telemarketing calls and texts to New York residents. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are the Telephone Consumer Protection Act, 47 U.S.C. § 227, New York General Business Law § 399-z, and New York General Business Law § 349.
The decisions discussed are Matter of Sunsea Energy LLC v. New York State Public Service Commission, 229 A.D.3d 1021 (3d Dep’t 2024), and Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20 (1995).
This post is general information about the Telephone Consumer Protection Act and related laws as of July 19, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.