In a somewhat significant departure from prior law, New Jersey Governor Chris Christie signed into law a bill to immediately amend the state’s telemarketing sales call rules to expand the ability of companies to make telemarketing calls to consumers’ mobile devices. Prior to the enactment of S. 1382, New Jersey’s “do not call” law for telemarketing mobile devices (N.J. Stat. § 56:8-130) prohibited “telemarketing sales calls” to consumers on their mobile devices, unless the call was made by a commercial mobile services company to its users, and even then only if the call was directly related to the company’s mobile services and the users do not incur charges. The definition of “telemarketing sales call” was broad and did not have any exceptions for specific types of sales calls (though it did expressly exclude calls made for the sole purpose of collecting on accounts or following up on contractual obligations).
Under the statute’s revised language, only “unsolicited telemarketing sales calls” to consumers’ mobile phones in the state are prohibited. While seemingly not a drastic change on its face, the statute defines “unsolicited telemarketing sales calls” as those made other than in response to the consumer’s express written consent, or to any company’s existing customer. The inclusion of “unsolicited” in N.J. Stat. § 56:8-130 thus broadens the scope of businesses that can telemarket to their customers’ cell phones under state law from just mobile service providers to any company with an existing relationship with a customer, or to companies that have express written consent from the called cell phone subscriber.
The change should be welcome news to businesses with relationships with New Jersey residents but which were barred from reaching their consumers under the state’s prior law. New Jersey’s easing of its telemarketing rule in this respect is especially important as more individuals use cell phones as their primary – and sometimes only – means of communication.
However, companies seeking to expand their telemarketing following this amendment still must comply with the federal Telephone Consumer Protection Act (“TCPA”), which applies to calls made using an automated dialing system and artificial or prerecorded messages. The TCPA requires prior express consent for any autodialed or prerecorded call that is made to a cell phone, and prior express written consent if the call is for telemarketing purposes, a requirement which also applies to prerecorded telemarketing to residential lines as well. Additionally, the TCPA requires a mechanism for automated opt outs during any prerecorded telemarketing call.