New Jersey traditionally has had the most onerous state Do Not Call law, which prohibited all telemarketing sales calls to cell phones. The law did not even allow such calls to be made with the consumer’s consent. With 90% of Americans owning cell phones and 58.8% of households being either entirely or predominantly wireless today, that was particularly bad news for telemarketers.
However, on January 29, 2015, New Jersey Governor Chris Christie signed into law state Senate bill 1382, which significantly loosens the state’s restrictions on telemarketing to cell phones. The bill clarifies the state’s Do Not Call law to prohibit only unsolicited telemarketing sales calls from being made to cell phones. The amended law – which took in effect immediately upon Governor Christie’s signing – defines “unsolicited telemarketing sales call” as any telemarketing sales call other than a call made (1) in response to the express written request of the consumer called or (2) to an existing customer. The New Jersey Senate Commerce Committee clarified that the latter carve-out from the state Do Not Call law permits the placement of collection calls and calls to follow up on customer’s contractual obligations “unless the customer has stated to the telemarketer that the customer no longer desires to receive the telemarketing sales calls of the telemarketer.”
New Jersey’s amended Do Not Call law is welcome news to telemarketers as they no longer need to take such a strict, prophylactic approach to telemarketing in the state and scrub out from their calling campaigns all New Jersey cell phone numbers. Telemarketing calls now may be placed to New Jersey consumers who have consented to the receipt of such calls or who are “existing customers” of the seller (i.e., persons who either are obligated to make payments to the seller or who have entered into a written contract with the seller).
It bears noting that, despite the relaxation of New Jersey’s prohibition on telemarketing to cell phones, telemarketers still must comply with the federal Telephone Consumer Protection Act (“TCPA”). Indeed, given the sharp uptick in TCPA litigation over the past several years and the potential for high damages awards, the FCC’s TCPA rules should be at the forefront of a telemarketer’s mind. Like New Jersey’s amended law, the TCPA allows for telemarketing calls to be placed to cell phones so long as the telemarketer has the consumer’s express written consent. However, under the TCPA, having an established business relationship with a consumer does not permit the placement of unsolicited sales calls to cell phones. Thus, as a practical matter, in order to comply with both the amended New Jersey law and the TCPA at once, a telemarketer must have the consumer’s express written consent prior to placing a telemarketing call to his or her cell phone. The bottom line for telemarketers is that sales calls to New Jersey cell phones now may be possible, but TCPA compliance remains the dominant issue.