New York Bill Targeting Robocalls Could Significantly Increase Exposure for Financial Services Companies

A New York law aimed at curbing robocalls could significantly increase risk for companies relying on auto-dialers or prerecorded calls to contact customers. The “Robocall Prevention Act” would ban calls and text messages using equipment from numbers stored on a list, or equipment that uses random or sequential number generators, unless the caller shows that “substantial additional human intervention” to dial the call is required after a person initiates the call.[1] The bill outright bans calls using an artificial or prerecorded voice. These prohibitions apply to “any telephone number owned by a person or entity in the state,” which would include landlines. Such calls could only be made with a consumer’s prior express consent, which is defined to mean a consumer’s agreement to accept calls in relation to the specific subject matter for which the call is made. Importantly, consumers can revoke consent in any reasonable manner and at any time, regardless of how consent was originally provided.

The bill gives New York’s attorney general power to bring enforcement actions for injunctive relief, along with significant fines of $2,000 per call, and up to $20,000 for calls placed in a continuous 72-hour period. It also creates a private right of action for injunctive relief, plus actual damages or $500 in statutory damages, whichever is greater. Courts have discretion to treble damages for private plaintiffs for knowing or willful violations of the Act.

The Act seeks to sidestep some of the defenses to the federal Telephone Consumer Protection Act (TCPA) that financial services companies have successfully raised in the past few years. First, it specifically states that a robocall includes equipment that dials from a set list and requires something less than “substantial additional human intervention.” This means that predictive dialers dialing from a set list of customers will fall within the purview of the Act. It is also possible that the Act applies to manual clicker applications or click-to-dial technology. The Act would contradict a number of federal court decisions which have held that predictive dialers and manual clicker applications are not subject to the TCPA’s restrictions.

Second, the Act would allow a customer to revoke consent by any reasonable means, regardless of how consent was obtained. This appears to undermine the Second Circuit’s decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017), which held that a plaintiff’s consent to be called could not be unilaterally revoked by a consumer when it was an express provision in a lease agreement.

Finally, the Act would expand its restrictions to a consumer’s residential landline. These additional restrictions, along with the increased penalties available for enforcement actions brought by the New York attorney general, could significantly increase exposure for financial services companies with customers in New York.  

The bill was amended on May 15, 2019 and awaits senate and assembly approval. We will continue to monitor the bill’s progress and provide additional updates as they become available. Please contact Ryan DiClemente, Esq. and Colleen Fox, Esq. for more information on TCPA compliance and litigation strategies.