Bill Text: NY A02047 | 2021-2022 | General Assembly | Amended

Bill Title: Limits robocalls to state residents and requires telephone service providers to offer free call blocking technology to telephone customers.

Spectrum: Slight Partisan Bill (Democrat 33-11)

Status: (Introduced) 2021-02-09 - reported referred to codes [A02047 Detail]

Download: New_York-2021-A02047-Amended.html

                STATE OF NEW YORK


                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    January 14, 2021

          --  Multi-Sponsored  by  --  M.  of  A. BYRNES, RAMOS -- read once and
          referred to the Committee on Corporations, Authorities and Commissions
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee

        AN  ACT to amend the general business law, in relation to limiting robo-
          calls to state residents and to require telephone service providers to
          offer free call blocking technology to telephone customers

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  This act shall be known and may be cited as the "robocall
     2  prevention act".
     3    § 2. Section 399-p of the general business law, as amended by  chapter
     4  581  of the laws of 1992, subdivision 6 as amended by chapter 546 of the
     5  laws of 2000, subdivision 6-a as added and subdivision 8 as  amended  by
     6  chapter 176 of the laws of 1998, is amended to read as follows:
     7    §  399-p.  [Telemarketing;  use] Use of automatic [dialing-announcing]
     8  dialing devices and placement of robocalls and consumer telephone calls.
     9  1. Definitions. As used in this section, the following terms shall  have
    10  the following meanings:
    11    (a)  "automatic  [dialing-announcing] dialing device" means [any auto-
    12  matic equipment which incorporates a  storage  capability  of  telephone
    13  numbers  to  be called and is used, working alone or in conjunction with
    14  other equipment, to disseminate a prerecorded message to  the  telephone
    15  number  called  without  the  use of an operator] equipment that makes a
    16  series of calls to stored telephone numbers, including numbers stored on

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

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     1  a list, except for equipment that requires a human to dial or place each
     2  individual call one call at a time, and  requires  such  human  to  then
     3  remain on each call;
     4    (b)  "person"  means  any natural person, firm, organization, partner-
     5  ship, association or corporation, or other entity, whether for-profit or
     6  not-for-profit;
     7    (c) "consumer" means a natural person who is  solicited  to  purchase,
     8  lease  or  receive  a  good or service for personal, family or household
     9  use;
    10    (d) "consumer telephone call" means a call made to a telephone  number
    11  by  a  telephone  solicitor,  whether  by  device, live operator, or any
    12  combination thereof, for the purpose of soliciting a sale of any consum-
    13  er goods or services for personal, family or household purposes  to  the
    14  consumer called, or for the purpose of soliciting an extension of credit
    15  for  consumer  goods  or  services  to  the  consumer called, or for the
    16  purpose of obtaining information that will or may be used for the direct
    17  solicitation of a sale of consumer goods or  services  to  the  consumer
    18  called  or  an extension of credit for such purposes; provided, however,
    19  that "consumer telephone call" shall not include a call made by a  tele-
    20  phone corporation, as defined by subdivision seventeen of section two of
    21  the public service law, in response to a specific inquiry initiated by a
    22  consumer  regarding  that  consumer's  existing  or  requested telephone
    23  service; [and]
    24    (e) "telephone solicitor" means a person who makes  or  causes  to  be
    25  made a consumer telephone call;
    26    (f)  "robocall"  means  a call made, including a text message sent, to
    27  any telephone number owned by a person or entity in the state:
    28    (1) using an automatic dialing device; or
    29    (2) using an artificial or prerecorded voice;
    30    (g) "prior express consent" for a call means that the purpose  of  the
    31  call  must  be  closely  related  to the purpose for which the telephone
    32  number was originally provided by the called party. A call by a non-pro-
    33  fit organization which is federally tax exempt  pursuant  to  26  U.S.C.
    34  501(c), to a member who had joined such organization or to the household
    35  of  such a member, is presumed to be closely related. A call by a sender
    36  with an established business relationship with the recipient, which  has
    37  not  been terminated by either party, is presumed to be closely related.
    38  A call by a school or school district to parents,  guardians,  students,
    39  or  faculty related to the educational mission of the school or to offi-
    40  cial school activities is presumed to be closely related.  A call  by  a
    41  county,  city, town, village, or subdivision thereof, to a recipient who
    42  is a resident of said entity  is  presumed  to  be  closely  related.  A
    43  customer's  prior  express consent can be revoked by the customer at any
    44  time in any reasonable manner, regardless of the context  in  which  the
    45  owner or user of the telephone provided consent;
    46    (h)  "provider"  means  any  company  that  provides  voice service to
    47  subscribers in the state utilizing any technology, regardless of whether
    48  such provider is regulated pursuant to the public service law;
    49    (i) "labor organization" means any  organization  of  any  kind  which
    50  exists  for  the purpose, in whole or in part, of representing employees
    51  employed within the state of New  York  in  dealing  with  employers  or
    52  employer  organizations  or with a state government, or any political or
    53  civil subdivision or other agency thereof, concerning terms  and  condi-
    54  tions  of employment, grievances, labor disputes, or other matters inci-
    55  dental to the employment relationship. For the purposes of this section,
    56  each local, parent national or parent international  organization  of  a

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     1  statewide  labor  organization,  and each statewide federation receiving
     2  dues from subsidiary labor organizations, shall be considered a separate
     3  labor organization; and
     4    (j) "department" means the department of state.
     5    2.  No  person  shall [operate an automatic dialing-announcing device]
     6  make any robocall, nor place any  consumer  telephone  call,  except  in
     7  accordance with the provisions of this section. The [use of such device]
     8  making  of a robocall by any person, either individually or acting as an
     9  officer, agent, or employee of a person [operating automatic dialing-an-
    10  nouncing devices] making a robocall, is subject  to  the  provisions  of
    11  this section.
    12    2-a. (a) A person shall be permitted to make a robocall only when such
    13  robocall is:
    14    (1) made for emergency purposes, pursuant to subdivision seven of this
    15  section;
    16    (2) made with the prior express consent of the called party;
    17    (3)  made by a labor organization to such organization's members or to
    18  the household of such members; or
    19    (4) authorized by regulations promulgated by the  department  pursuant
    20  to paragraph (b) of this subdivision.
    21    (b)  The  department,  in  consultation  with the department of public
    22  service, shall promulgate regulations to  implement  the  provisions  of
    23  this  subdivision,  and  may  permit,  subject to such conditions as the
    24  department may prescribe, robocalls to be made to  a  residential  tele-
    25  phone  line without prior express consent if such calls are not made for
    26  a commercial purpose.
    27    3. [Whenever telephone calls are placed through the use of an automat-
    28  ic dialing-announcing device, such device shall do all of the following]
    29  In addition to the provisions of subdivision two-a of this section:
    30    (a) If a robocall or consumer telephone call permitted by this section
    31  uses a prerecorded voice, such call shall state at the beginning of  the
    32  call  the  nature  of  the  call  and the name of the person or on whose
    33  behalf the message is being transmitted and at the end of  such  message
    34  the  address,  and  telephone  number  of the person on whose behalf the
    35  message is transmitted, provided  such  disclosures  are  not  otherwise
    36  prohibited or restricted by any federal, state or local law; and
    37    (b) If a robocall permitted by this section is made using an automatic
    38  dialing  device, such device shall disconnect [the automatic dialing-an-
    39  nouncing device] from the telephone line upon  the  termination  of  the
    40  call by either the person calling or the person called.
    41    4.  No  person shall operate an automatic [dialing-announcing] dialing
    42  device which uses a random or sequential number generator to  produce  a
    43  number to be called.
    44    4-a.  (a) No person making a robocall shall knowingly cause any caller
    45  identification service to  transmit  misleading,  inaccurate,  or  false
    46  caller  identification  information  with  the  intent to defraud, cause
    47  harm, or wrongfully obtain anything of value.
    48    (b) This subdivision does not prohibit:
    49    (1) Any authorized activity of a law enforcement agency; or
    50    (2) Any activity pursuant to a court order that  specifically  author-
    51  izes the use of caller identification manipulation.
    52    4-b.  (a)  Consistent  with  authorization provided by federal law and
    53  rules or orders of the federal communications commission or its  succes-
    54  sors: (i) Providers shall offer subscribers services that are capable of
    55  blocking calls to a telephone or other device, on an opt-out basis. Such
    56  call  blocking  may  include  sending  a  call  directly  to  the called

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     1  subscriber's voicemail, or to a  personal  assistant  that  answers  the
     2  call,  or to a completely automated public turing test to tell computers
     3  and humans apart, known as "CAPTCHA", menu that  confronts  the  calling
     4  part  and  requires  a  caller to confirm that he or she is not a robot.
     5  Providers shall, in a manner that is clear for a  subscriber  to  under-
     6  stand: (1) offer sufficient information to subscribers so that subscrib-
     7  ers  can  make  an informed choice as to whether they wish to opt-out of
     8  such service; and (2) clearly disclose  to  subscribers  what  types  of
     9  calls  may be blocked and the risks of blocking wanted calls. Deployment
    10  of any call blocking services shall result in no additional surcharge or
    11  fee to the subscriber. (ii) On or before  January  first,  two  thousand
    12  twenty-two, and  periodically thereafter, all providers shall review the
    13  best  available  call blocking technology and deploy any such technology
    14  which may better accomplish  the  purpose  of  this  section.  Any  such
    15  upgrades shall be deployed to all subscribers as soon as feasible and at
    16  no  additional surcharge or fee to such subscribers. (iii) By July thir-
    17  ty-first of the year following the effective date of this paragraph, and
    18  annually thereafter, every provider shall file with both the department,
    19  and the public service commission, a report setting forth its deployment
    20  and review of the best available call blocking  technology  required  by
    21  this  section,  as well as any available upgrades thereto and deployment
    22  thereof to persons or entities, as well as any  other  information  that
    23  the  department,  in consultation with the department of public service,
    24  may require. The report shall include a sworn statement by  a  principal
    25  or  officer of the provider that the information provided is current and
    26  accurate.
    27    (b) The department, in consultation  with  the  department  of  public
    28  service,  shall  promulgate regulations to implement the requirements of
    29  this subdivision, including,  if  appropriate,  a  reasonable  delay  in
    30  requiring  implementation  and offering of such call blocking technology
    31  if for good cause, taking into account the consumer protection  purposes
    32  of  this  section,  and including procedures for addressing incidents in
    33  which a call wanted by the  customer  is  prevented  from  reaching  the
    34  customer.  The  department  may also promulgate regulations allowing for
    35  the requirements of this subdivision to be waived for  existing  network
    36  facilities  in  instances  where the provider can reasonably demonstrate
    37  that call blocking technology cannot feasibly  be  implemented  on  such
    38  facilities  due  to technological limitations, until such time as it can
    39  be feasibly implemented.
    40    5. No [automatic dialing-announcing device shall be used to  call  and
    41  no]  robocall or consumer telephone call shall be placed to an emergency
    42  telephone line including but not limited to any 911 or  E-911  line,  or
    43  any emergency line of any volunteer fire company or fire department; any
    44  emergency   medical  service,  ambulance  service,  voluntary  ambulance
    45  service or hospital ambulance service as defined in section three  thou-
    46  sand  one of the public health law; any hospital, nursing home, or resi-
    47  dential health care facility as defined in section twenty-eight  hundred
    48  one  of  the  public  health  law; any adult care facility as defined in
    49  section two of the social services law; or any law enforcement agency or
    50  to the telephone line of any guest room or patient room of any hospital,
    51  nursing home, or residential health care facility as defined in  section
    52  two  thousand  eight  hundred one of the public health law, or any adult
    53  care facility as defined by section two of the social services  law.  It
    54  shall  not  constitute a violation of this subdivision if the person who
    55  places such a call can affirmatively establish that the call was  placed
    56  inadvertently  despite  good faith efforts on the part of such person to

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     1  comply with the provisions of this section and such  person  has  imple-
     2  mented  a  procedure  to prevent subsequent calls from being placed to a
     3  particular prohibited telephone number.
     4    6. A telephone solicitor shall not make a consumer telephone call to a
     5  consumer  unless  the telephone solicitor conforms with subparagraph one
     6  of paragraph b of subdivision six of section three hundred  ninety-nine-
     7  pp  of  this article. Nothing contained herein shall be deemed to limit,
     8  annul, alter, or affect the provisions  of  subdivision  three  of  this
     9  section.
    10    6-a.  No  telephone  solicitor or person who places any consumer tele-
    11  phone call or [who  operates  an  automatic  dialing-announcing  device]
    12  robocall and no employer of any such telephone solicitor or person shall
    13  intentionally cause to be installed, or shall intentionally utilize, any
    14  blocking  device  or service to prevent the name and/or telephone number
    15  of such solicitor or person, or the name and/or telephone number of  his
    16  or  her employer, from being displayed on a caller identification device
    17  of the recipient of any such consumer telephone  call.  A  violation  of
    18  this subdivision shall be subject to the provisions of subdivision eight
    19  of this section.
    20    7.  (a)  Federal,  state  or  local municipalities, or any subdivision
    21  thereof, [using an automatic dialing-announcing device] making  a  robo-
    22  call  for  emergency  purposes  shall be exempted from the provisions of
    23  this section.
    24    (b) Notwithstanding the provisions of paragraph (a) of  this  subdivi-
    25  sion,  any  entity  [which  operates]  making  a  robocall for emergency
    26  purposes through the operation of a telephone warning  or  alert  system
    27  [which  utilizes  any  such device for emergency purposes] shall also be
    28  exempted from the provisions of this section.
    29    8. Whenever there shall be a  violation  of  subdivision  two,  three,
    30  four, four-a, five, six, or six-a of this section, an application may be
    31  made  by  the attorney general in the name of the people of the state of
    32  New York to a court or justice having jurisdiction to issue  an  injunc-
    33  tion,  and  upon  notice to the defendant of not less than five days, to
    34  enjoin and restrain the continuance of such violations; and if it  shall
    35  appear  to  the satisfaction of the court or justice, that the defendant
    36  has, in fact, violated subdivision two, three, four, four-a, five,  six,
    37  or  six-a  of  this section an injunction may be issued by such court or
    38  justice enjoining and restraining any further violation, without requir-
    39  ing proof that any person has, in fact, been injured or damaged thereby.
    40  In any such proceeding, the court may make allowances  to  the  attorney
    41  general  as  provided  in  paragraph  six  of subdivision (a) of section
    42  eighty-three hundred three of the civil  practice  law  and  rules,  and
    43  direct  restitution. Whenever the court shall determine that a violation
    44  of subdivision two, three, four, or five of this section  has  occurred,
    45  the  court  may  impose  a  civil  penalty of not more than two thousand
    46  dollars per call, up to  a  total  of  not  more  than  twenty  thousand
    47  dollars,  for  calls  placed  in violation of such subdivisions within a
    48  continuous seventy-two hour period. Whenever the court  shall  determine
    49  that a violation of subdivision four-a of this section has occurred, the
    50  court  may impose a civil penalty of not less than five thousand dollars
    51  nor more than ten thousand dollars  for  each  violation.  Whenever  the
    52  court  shall  determine  that  a  violation  of  subdivision six of this
    53  section, or a violation  of  subdivision  six-a  of  this  section,  has
    54  occurred,  the  court  may  impose  a civil penalty of not more than two
    55  thousand dollars. In connection with any such proposed application,  the
    56  attorney general is authorized to take proof and make a determination of

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     1  the  relevant  facts and to issue subpoenas in accordance with the civil
     2  practice law and rules.
     3    9.  In addition to the right of action granted to the attorney general
     4  pursuant to this section, any person who has received a  telephone  call
     5  in  violation  of  subdivision  two, three, four, four-a or five of this
     6  section may bring:
     7    (a) an action in his or her own name to enjoin such  unlawful  act  or
     8  practice[,];
     9    (b)  an  action  to  recover his or her actual damages or [fifty] five
    10  hundred dollars, whichever is greater[,]; or
    11    (c) both such actions. The court may, in its discretion, increase  the
    12  award  of  damages  to  an  amount not to exceed three times the [actual
    13  damages up to one thousand dollars] amount available under paragraph (b)
    14  of this subdivision, if the court finds the defendant willfully or know-
    15  ingly violated such subdivisions. The court [may] shall award reasonable
    16  attorney's fees to  a  prevailing  plaintiff.  Any  damages  recoverable
    17  pursuant  to  this  section may be recovered in any action which a court
    18  may authorize to be brought as a class action pursuant to  article  nine
    19  of the civil practice law and rules.
    20    10.  (a) The department, in consultation with the department of public
    21  service, shall report on issues related to  illegal  robocalls  made  to
    22  telephone  numbers owned by a person or entity in this state, and on the
    23  status of the implementation and offering of call blocking technology by
    24  providers. Such report shall be delivered no later than December  first,
    25  two  thousand  twenty-two, and annually thereafter, to the governor, the
    26  temporary president of the senate, the  speaker  of  the  assembly,  the
    27  minority leader of the senate, and the minority leader of the assembly.
    28    (b) Such report shall include:
    29    (1)  A  list  of  providers operating in this state, and the status of
    30  their implementation and offering of call blocking services;
    31    (2) Information regarding delays in the implementation and offering of
    32  call blocking technology, and the reasons for such delays;
    33    (3) Recommendations for additional measures to protect customers  from
    34  illegal robocalls;
    35    (4) The number of illegal robocalls made to telephone numbers owned by
    36  a person or entity in this state, to the extent that such information is
    37  known; and
    38    (5)  Any other information or recommendations relating to the issue of
    39  robocalls that the department judges to be pertinent or necessary.
    40    11. The public service commission may promulgate any  rules  or  regu-
    41  lations  necessary  to  implement  and  enforce  the  provisions of this
    42  section.
    43    § 3. Paragraph b of subdivision 11 of section 399-pp  of  the  general
    44  business law, as added by chapter 546 of the laws of 2000, is amended to
    45  read as follows:
    46    b.  In  every case where the court shall determine that a violation of
    47  this section has occurred, it may impose a civil  penalty  of  not  less
    48  than  one  thousand  dollars nor more than two thousand dollars for each
    49  violation, provided that for a violation of subdivision seven-a of  this
    50  section,  the  court  may  impose  a civil penalty of not less than five
    51  thousand dollars nor more than ten thousand dollars for each  violation.
    52  Such  penalty  shall  be  in  addition  to the denial of registration or
    53  renewal, suspension of registration or  revocation  of  registration  or
    54  assessment of a fine authorized by subdivision five of this section.
    55    § 4. If any provision of this act, or any application of any provision
    56  of  this act, is  held to be invalid, that shall not affect the validity

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     1  or effectiveness of any other provision of this act,  or  of  any  other
     2  application  of  any  provision  of  this act, which can be given effect
     3  without that provision or application; and to that end,  the  provisions
     4  and applications of this act are severable.
     5    §  5.  This  act shall take effect on the ninetieth day after it shall
     6  have become a law.    Effective  immediately,  the  addition,  amendment
     7  and/or repeal of any rule or regulation necessary for the implementation
     8  of this act on its effective date are authorized to be made on or before
     9  such effective date.