Does New Jersey Have a “Do-Not-Call” Exemption for Calls to Past Customers?

Or

My Nomination for the Most Confusing Statute Ever.

Telemarketing compliance counsel is often more about determining how to group various jurisdictions, as the statutory restrictions in the states and federal law are often similar, than solving particularly hard problems.

Nearly 40 percent of states, for example, use the federal definition of “established business relationship” for their “do-not-call” laws, i.e. calls are exempt from the state “do-not-call” law if placed to a consumer within three months of an inquiry or 18 months from a purchase.

 Determining the outliers takes more time and effort, and one state statute, more than any other, has defied explanation or categorization for me for over a decade.  That statute is New Jersey’s “do-not-call” law.  This article will attempt to explain, in plain English, the parameters of that exemption.

 One confusing aspect of compliance with this law is that New Jersey uses the federal “do-not-call” list (those numbers on the federal list from New Jersey) but enforces it with state law that differs from federal law (several states do this).  The charts below only concern New Jersey numbers on the national “do-not-call” list; this statute does not restrict calls to numbers which are not on that list.

 But even more confusing are the legal terms the statute uses:

Who is placing the call? Who you can call even if the person is on New Jersey’s “do-not-call” list: Legal Citation What can you sell
You or your agent “Established customers”- a customer for whom a seller has previously provided continuing services where the relationship has not been affirmatively or constructively terminated. N.J. Admin. Code § 13:45D-4.4 Any call related to provision of continuing services, but not calls related to expanded services, upgrades, products, or other services unless directly related to the services previously provided.
You or your agent “Existing customers” - 1) A person who is obligated to make payments to a seller on merchandise purchased; or 2) A person who has entered into a written contract with a seller where there is an obligation to perform, either by the customer, seller, or both. N.J. Admin. Code § 13:45D-1.3 Anything including upsells
Your affiliates (related companies) “Established customers”- a customer for whom a seller has previously provided continuing services where the relationship has not been affirmatively or constructively terminated. N.J. Admin. Code § 13:45D-4.4 Same as above, i.e. continuing services only

And here is my summary in plain English:

Who is placing the call? Who you can call even if the person is on New Jersey’s “do-not-call” list: What can you sell
You People who you have provided continuing services to either currently or in the past so long as that person has not made a do-not-call request to you or otherwise ended the relationship Continuing services but no upsells
You Current customers with an unsatisfied written contract or who currently owe you money for past purchases Anything including upsells
A related company People who you have provided continuing services to either currently or in the past so long as that person has not made a do-not-call request to you or otherwise ended the relationship Same as above, i.e. continuing services only

So the established business relationship exemption is narrower than the federal exemption, but it does exist.  

Please contact me if you would like to discuss this exemption or other “do-not-call” list issues.