Bill Text: NY A05397 | 2019-2020 | General Assembly | Introduced
Bill Title: Allows individuals to register their telefacsimile telephone numbers with the consumer protection board as part of the "do not call" statewide registry.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2020-01-08 - referred to consumer affairs and protection [A05397 Detail]
Download: New_York-2019-A05397-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5397 2019-2020 Regular Sessions IN ASSEMBLY February 11, 2019 ___________ Introduced by M. of A. CYMBROWITZ, COLTON, DINOWITZ, GALEF, GUNTHER, JAFFEE -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the general business law and the public service law, in relation to allowing individuals to register their telefacsimile tele- phone numbers with the consumer protection board as part of the "do not call" statewide registry The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 399-z of the general business law, as amended by 2 chapter 369 of the laws of 2012, paragraph k of subdivision 1 as amended 3 and paragraphs l and m of subdivision 1 as added by chapter 484 of the 4 laws of 2016, subdivision 2 as amended by chapter 239 of the laws of 5 2017 and subdivision 2-a as amended by chapter 18 of the laws of 2017, 6 is amended to read as follows: 7 § 399-z. Telemarketing; establishment of no telemarketing sales calls 8 statewide registry; authorization of the transfer of telephone numbers 9 on the no telemarketing sales calls and telefacsimile advertising state- 10 wide registry to the national "do-not-call" registry. 1. As used in this 11 section, the following terms shall have the following meanings: 12 a. "Department" shall mean the department of state. 13 b. "Secretary" shall mean the secretary of state. 14 c. "Customer" means any natural person who is a resident of this state 15 and who is or may be required to pay for or to exchange consideration 16 for goods and services offered through telemarketing; 17 d. "Doing business in this state" means conducting telephonic sales 18 calls: (i) from a location in this state; or (ii) from a location 19 outside of this state to consumers residing in this state; 20 e. "Goods and services" means any goods and services, and shall 21 include any real property or any tangible personal property or services 22 of any kind; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09381-01-9A. 5397 2 1 f. "Negative option feature" means, in an offer or agreement to sell 2 or provide any goods or services, a provision under which the customer's 3 silence or failure to take an affirmative action to reject such goods or 4 services or to cancel the agreement is interpreted by the seller as 5 acceptance of the offer. 6 g. "Person" means any natural person, association, partnership, firm, 7 corporation and its affiliates or subsidiaries or other business entity; 8 h. "Telemarketer" means any person who, for financial profit or 9 commercial purposes in connection with telemarketing, makes telemarket- 10 ing sales calls to a customer when the customer is in this state or any 11 person who directly controls or supervises the conduct of a telemarket- 12 er. For the purposes of this section, "commercial purposes" shall mean 13 the sale or offer for sale of goods or services; 14 i. "Telemarketing" means any plan, program or campaign that is 15 conducted to induce payment or the exchange of any other consideration 16 for any goods or services that involves more than one telephone call by 17 a telemarketer in which the customer is located within the state at the 18 time of the call. Telemarketing does not include the solicitation of 19 sales through media other than by telephone calls and does not include 20 calls intended to implement or complete a transaction to which the 21 customer has previously consented; 22 j. "Telemarketing sales call" means a telephone call made by a tele- 23 marketer or by any outbound telephone calling technology that delivers a 24 prerecorded message to a customer or to a customer's voicemail or 25 answering machine service for the purpose of inducing payment or the 26 exchange of any other consideration for any goods or services; 27 k. "Unsolicited telemarketing sales call" means any telemarketing 28 sales call other than a call made: 29 (i) in response to an express written or verbal request by the custom- 30 er; or 31 (ii) in connection with an established business relationship, which 32 has not been terminated by either party, unless such customer has stated 33 to the telemarketer that such customer no longer wishes to receive the 34 telemarketing sales calls of such telemarketer; 35 l. "Caller identification information" means information provided by a 36 caller identification service regarding the telephone number and name of 37 the person calling; and 38 m. "Caller identification service" means a service that allows a tele- 39 phone subscriber to have the telephone number, and, where available, 40 name of the calling party transmitted contemporaneously with the tele- 41 phone call, and displayed on a device in or connected to the subscrib- 42 er's telephone. 43 n. "Unsolicited telefacsimile advertisement" means any telefacsimile 44 message that promotes goods and services for purchase by the recipient 45 of such message, except where the message is sent to a recipient with 46 which the initiator has had a preexisting business or contractual 47 relationship; 48 o. "Telefacsimile" means every process in which electronic signals are 49 transmitted by telephone lines for conversion into written text; 50 p. "Telefacsimile advertiser" means any person, corporation, partner- 51 ship or association who initiates unsolicited telefacsimile advertise- 52 ments. 53 2. No telemarketer or seller shall engage in telemarketing at any time 54 other than between 8:00 A.M. and 9:00 P.M. at the location of the 55 customer unless the customer has given his or her express consent to the 56 call at a different time. Telemarketers shall provide, in a clear andA. 5397 3 1 coherent manner using words with common and everyday meanings, at the 2 beginning of each telemarketing sales call all of the following informa- 3 tion: 4 a. the telemarketer's name and the person on whose behalf the solic- 5 itation is being made, if other than the telemarketer; 6 b. the purpose of the telephone call; 7 c. the identity of the goods or services for which a fee will be 8 charged; and 9 d. whether the call is being recorded. 10 2-a. It shall be unlawful for any telemarketer or seller to knowingly 11 cause any caller identification service to transmit misleading, inaccu- 12 rate, or false caller identification information, provided that it shall 13 not be a violation to substitute (for the name and phone number used in, 14 or billed for, making the call) the name or telephone number of the 15 person or seller on behalf of which a telemarketing call is placed. 16 3. Prior to the purchase of any good or service, telemarketers shall 17 disclose to the customer the cost of the goods or services that are the 18 subject of the call and if the offer includes a negative option feature, 19 all material terms and conditions of the negative option feature, 20 including, but not limited to the fact that the customer's account will 21 be charged unless the customer takes an affirmative action to avoid the 22 charges, the dates the charges will be submitted for payment, and the 23 specific steps the customer must take to avoid the charge. 24 4. a. The department is authorized to establish, manage, and maintain 25 a no telemarketing sales calls and telefacsimile advertising statewide 26 registry which shall contain a list of customers who do not wish to 27 receive unsolicited telemarketing sales calls or telefacsimile advertis- 28 ing. The department may contract with a private vendor to establish, 29 manage and maintain such registry, provided the private vendor has main- 30 tained national no telemarketing sales calls or telefacsimile advertis- 31 ing registries for more than two years, and the contract requires the 32 vendor to provide the no telemarketing sales calls and telefacsimile 33 advertising registry in a printed hard copy format and in any other 34 format as prescribed by the department. Any type of copy format main- 35 tained for telemarketing sales calls shall be maintained for telefacsim- 36 ile advertising. 37 b. The department is authorized to have the national "do-not-call" 38 registry established, managed and maintained by the federal trade 39 commission pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve 40 as the New York state no telemarketing sales calls and telefacsimile 41 advertising statewide registry provided for by this section. The depart- 42 ment is further authorized to take whatever administrative actions may 43 be necessary or appropriate for such transition including, but not 44 limited to, providing the telephone numbers of New York customers regis- 45 tered on the no telemarketing sales calls and telefacsimile advertising 46 statewide registry to the federal trade commission, for inclusion on the 47 national "do-not-call" registry. 48 5. a. No telemarketer or seller may make or cause to be made any unso- 49 licited telemarketing sales call to any customer when that customer's 50 telephone number has been on the national "do-not-call" registry, estab- 51 lished by the federal trade commission, for a period of thirty-one days 52 prior to the date the call is made, pursuant to 16 C.F.R. Section 53 310.4(b)(1)(iii)(B). 54 b. No telefacsimile advertiser may make or cause to be made any unso- 55 licited telefacsimile advertisement to any customer more than thirty 56 days after the customer's name and telephone number or numbers appear onA. 5397 4 1 the then current quarterly no telemarketing sales calls and telefacsim- 2 ile advertising registry made available by the board pursuant to subdi- 3 vision four of this section. 4 6. No telemarketer or seller shall initiate any telemarketing sales 5 call by means of a technology that delivers a pre-recorded message, 6 unless the telemarketer or seller has obtained from the customer an 7 express agreement, in writing that: 8 a. the telemarketer or seller obtained only after a clear and conspic- 9 uous disclosure that the purpose of the agreement is to authorize the 10 seller to make telemarketing sales calls to such customer; 11 b. the telemarketer or seller obtained without requiring, directly or 12 indirectly, that the agreement be executed as a condition of purchasing 13 any good or service; 14 c. evidences the willingness of the customer to receive telemarketing 15 sales calls by or made on behalf of a specific seller; and, 16 d. includes such customer's telephone number and signature. 17 7. In the case of any telemarketing sales call delivered by means of a 18 technology that delivers a pre-recorded message that could be received 19 by a customer who can use an automated interactive voice and/or keypress 20 activated opt-out mechanism to assert a do-not-call request, such call 21 shall include a mechanism that allows the customer to automatically add 22 the number called to the seller's entity specific do-not-call list, and 23 which mechanism, once invoked, immediately ends the call. 24 8. In the case of any telemarketing sales call delivered by means of a 25 technology that delivers a pre-recorded message that could be answered 26 by an answering machine or voicemail service, that the call include a 27 toll-free number that must connect the customer directly to an automated 28 interactive voice or keypress activated opt-out mechanism that allows 29 the consumer to automatically add the number called to the seller's 30 entity specific do-not-call list, and which mechanism, once invoked, 31 immediately ends the call. 32 9. Telemarketers and sellers shall keep for a period of twenty-four 33 months from the date the record is created records relating to its tele- 34 marketing activities. 35 10. a. The department shall provide notice to customers of the estab- 36 lishment of the national "do-not-call" registry. Any customer who wishes 37 to be included on such registry shall notify the federal trade commis- 38 sion as directed by relevant federal regulations. 39 b. Any company that provides local telephone directories to customers 40 in this state shall inform its customers of the provisions of this 41 section by means of publishing a notice in such local telephone directo- 42 ries. 43 c. Any company in the state that sells equipment capable of transmit- 44 ting a telefacsimile shall inform its customers of the provisions of 45 this section by means of posting a notice issued by the board. 46 11. When the department has reason to believe a telemarketer has 47 engaged in repeated unlawful acts in violation of this section, or when 48 a notice of hearing has been issued pursuant to subdivision twelve of 49 this section, the department may request in writing the production of 50 relevant documents and records as part of its investigation. If the 51 person upon whom such request was made fails to produce the documents or 52 records within thirty days after the date of the request, the department 53 may issue and serve subpoenas to compel the production of such documents 54 and records. If any person shall refuse to comply with a subpoena issued 55 under this section, the department may petition a court of competentA. 5397 5 1 jurisdiction to enforce the subpoena and such sanctions as the court may 2 direct. 3 12. a. Where it is determined after hearing that any person has 4 violated one or more provisions of this section, the secretary, or any 5 person deputized or so designated by him or her may assess a fine not to 6 exceed eleven thousand dollars for each violation. 7 b. Any proceeding conducted pursuant to paragraph a of this subdivi- 8 sion shall be subject to the state administrative procedure act. 9 c. Nothing in this subdivision shall be construed to restrict any 10 right which any person may have under any other statute or at common 11 law. 12 13. A person shall not be held liable for violating this section if: 13 a. the person has obtained a version of the "do-not-call" registry 14 from the federal trade commission no more than thirty-one days prior to 15 the date any telemarketing call or unsolicited telefacsimile advertise- 16 ment is made, pursuant to 16 C.F.R. Section 310.4(b)(1)(iii)(B), and the 17 person can demonstrate that, as part of the person's routine business 18 practice at the time of an alleged violation, it has established, imple- 19 mented and updated written policies and procedures related to the 20 requirements of this section prior to the date any telemarketing call is 21 made; 22 b. the person has trained his or her personnel in the requirements of 23 this section; and 24 c. the person maintains and can produce records demonstrating compli- 25 ance with paragraphs a and b of this subdivision and the requirements of 26 this section. 27 14. The department shall prescribe rules and regulations to administer 28 this section. 29 15. Severability. If any clause, sentence, paragraph or part of this 30 section shall be adjudged by any court of competent jurisdiction to be 31 invalid, such judgment shall not affect, impair or invalidate the 32 remainder thereof, but shall be confined in its operation to the clause, 33 sentence, paragraph or part thereof directly involved in the controversy 34 in which such judgment shall have been rendered. 35 § 2. Section 92-d of the public service law, as amended by chapter 546 36 of the laws of 2000, the opening paragraph as separately amended by 37 chapter 547 of the laws of 2000, is amended to read as follows: 38 § 92-d. Telephone solicitations. Each local exchange telephone company 39 shall inform its customers of the provisions of sections three hundred 40 ninety-nine-p [and], three hundred ninety-nine-z and three hundred 41 ninety-nine-pp of the general business law and article ten-B of the 42 personal property law, as such provisions relate to the rights of 43 consumers with respect to telemarketers, sellers, the no telemarketing 44 sales [call] calls and telefacsimile advertising statewide registry, and 45 automatic dialing-announcing devices, by means of: 46 1. Inserting a notice annually in the customers' billing statements; 47 and 48 2. Publishing a notice in local telephone directories. 49 § 3. Separability clause; construction. If any part or provision of 50 this act or the application thereof to any person or circumstances be 51 adjudged invalid by any court of competent jurisdiction, such judgment 52 shall be confined in its operation to the part, provision or application 53 directly involved in the controversy in which such judgment shall have 54 been rendered and shall not affect or impair the validity of the remain- 55 der of this act or the application thereof to other persons or circum- 56 stances.A. 5397 6 1 § 4. This act shall take effect on the one hundred eightieth day after 2 it shall have become a law. Effective immediately, the addition, amend- 3 ment and/or repeal of any rule or regulation necessary for the implemen- 4 tation of this act on its effective date are authorized to be made and 5 completed on or before such effective date.