senate Bill S3374

Amended

Prohibits the transmission of unsolicited advertising text messages to cellular telephones or pagers

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Co-Sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 01 / Feb / 2013
    • REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS
  • 27 / Feb / 2013
    • 1ST REPORT CAL.103
  • 28 / Feb / 2013
    • 2ND REPORT CAL.
  • 04 / Mar / 2013
    • ADVANCED TO THIRD READING
  • 17 / Jun / 2013
    • AMENDED ON THIRD READING 3374A
  • 21 / Jun / 2013
    • COMMITTED TO RULES
  • 08 / Jan / 2014
    • REFERRED TO CORPORATIONS, AUTHORITIES AND COMMISSIONS

Summary

Prohibits the transmission of unsolicited advertising text messages to cellular telephones or pagers; makes an exception for providers of such services and their affiliates who have permission; provides for enforcement by the attorney general and a private right of action.

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Bill Details

Versions:
S3374
S3374A
Legislative Cycle:
2013-2014
Current Committee:
Senate Corporations, Authorities And Commissions
Law Section:
Business Corporation Law
Laws Affected:
Add §521, BC L; add §390-d, Gen Bus L
Versions Introduced in Previous Legislative Cycles:
2011-2012: A2566, S7157
2009-2010: A5192
2007-2008: A4042

Votes

6
0
6
Aye
0
Nay
0
aye with reservations
0
absent
0
excused
0
abstained
show Corporations, Authorities and Commissions committee vote details

Sponsor Memo

BILL NUMBER:S3374

TITLE OF BILL: An act to amend the business corporation law and the
general business law, in relation to prohibiting the transmission of
certain text messages to cellular telephones or pagers

PURPOSE: This bill would, subject to certain exceptions, generally
prohibit a person or entity conducting business in this state from tran-
smitting or causing to be transmitted a text message consisting of unso-
licited advertising material to a cellular telephone or pager equipped
with short message capability or any similar capability allowing the
transmission of text messages.

SUMMARY OF PROVISIONS: Amends the business corporation law and the
general business law to prohibit a person or business in New York from
sending an unsolicited text message advertisement.

Defines a text message advertisement.

Describes the exceptions to the law; shall not apply if the service
subscriber has affirmatively chosen, or opted-in, to receive messages
from either the service provider, a business with an existing relation-
ship, or an affiliate of that business. Consent is required for each
entity sending messages.

Allows for the state to sue as well as an individual.

Provides for an effective date of 90 days after it shall have become a
law.

JUSTIFICATION: This bill seeks to end the practice of unsolicited text
messaging before it escalates to a level that causes an impossible
burden for wireless telephone and pager subscribers and the wireless
communication industry. Unsolicited text messaging is similar to unso-
licited telephone calls and unsolicited email. In addition, when a
company sends out unsolicited text messages, it often ends up costing
subscribers because most cellular phone and pager service providers
charge for every text message in excess of a specified monthly limit.
This bill is designed to remedy the situation by assuring wireless
communication users that they will not have to pay for any unsolicited
text messages. Proponents point out that unsolicited text messages can
cause safety hazards. For example, unsolicited text messages can create
a hazard if sent to an individual while driving an automobile because,
unlike ordinary phone calls, it is not possible to receive text messages
in a hands-free mode of operation.

Additionally, cellular phones and pagers have become vital communication
links between emergency personnel in crisis situations. Sending unso-
licited text messages to emergency personnel might compromise a life
threatening emergency situation if the text message ties up the communi-
cation line. This also is burdensome because people are required to

examine their cellular phone or pager for every received message. Unso-
licited text messaging causes a problem not just for the customers, but
for the service providers as well. As more people are hit with text
messaging span, more customers are turned off to the service, hurting
business for the carriers. Recent articles depicted the newest advertis-
ing frontier as being attached to your hip or in your purse. Statistics
show that unsolicited text messaging can potentially be sent to an esti-
mated 100 million cell phones in the United States. The Wall Street
Journal projects that 110 million cell phones in the United States will
possess text messaging capabilities this year. This statistic shows a
dramatic increase from the 37 million text messaging capable phones that
existed in 1999.

LEGISLATIVE HISTORY: 2012 S.7157 - Corporations Committee/A.2566
Consumer Affairs Committee

FISCAL IMPLICATIONS: None known.

EFFECTIVE DATE: 90 days after it shall have become a law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3374

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 1, 2013
                               ___________

Introduced  by  Sen.  GRIFFO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Corporations,  Authorities
  and Commissions

AN  ACT  to  amend the business corporation law and the general business
  law, in relation to  prohibiting  the  transmission  of  certain  text
  messages to cellular telephones or pagers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The business corporation law is amended by adding  a    new
section 521 to read as follows:
S 521. APPLICABILITY  OF  THE  GENERAL  BUSINESS  LAW TO BUSINESS CORPO-
         RATIONS THAT MAINTAIN DATA.
  EVERY BUSINESS CORPORATION ORGANIZED  UNDER  THIS  CHAPTER  AND  EVERY
FOREIGN CORPORATION (INCLUDING EVERY FOREIGN PROFESSIONAL SERVICE CORPO-
RATION)  QUALIFIED TO DO BUSINESS IN THIS STATE PURSUANT TO THIS CHAPTER
IS  SUBJECT  TO  SECTION  THREE HUNDRED NINETY-D OF THE GENERAL BUSINESS
LAW.
  S 2. The general business law is amended by adding a new section 390-d
to read as follows:
  S 390-D. UNSOLICITED TEXT MESSAGES.  1.  EXCEPT AS PROVIDED IN  SUBDI-
VISION  TWO  OF THIS SECTION, NO PERSON OR ENTITY CONDUCTING BUSINESS IN
THIS STATE SHALL TRANSMIT OR CAUSE TO  BE  TRANSMITTED  A  TEXT  MESSAGE
ADVERTISEMENT  TO  A  CELLULAR  TELEPHONE  OR  PAGER EQUIPPED WITH SHORT
MESSAGE CAPABILITY OR ANY SIMILAR CAPABILITY ALLOWING  THE  TRANSMISSION
OF TEXT MESSAGES. A TEXT MESSAGE ADVERTISEMENT IS A MESSAGE, THE PRINCI-
PAL  PURPOSE OF WHICH IS TO PROMOTE THE SALE OF GOODS OR SERVICES TO THE
RECIPIENT, CONSISTING OF  ADVERTISING  MATERIAL  FOR  THE  LEASE,  SALE,
RENTAL, GIFT OFFER, OR OTHER DISPOSITION OF ANY REALTY, GOODS, SERVICES,
OR EXTENSION OF CREDIT.
  2.  THIS  SECTION  SHALL NOT APPLY TO TEXT MESSAGES TRANSMITTED AT THE
DIRECTION OF A PERSON OR ENTITY OFFERING  CELLULAR  TELEPHONE  OR  PAGER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04181-01-3

S. 3374                             2

SERVICE,  OR  BY  A BUSINESS OR AFFILIATES OF THAT BUSINESS, THAT HAS AN
EXISTING RELATIONSHIP WITH THE SUBSCRIBER, BUT ONLY  IF  THE  SUBSCRIBER
HAS PROVIDED CONSENT TO THE PERSON OR ENTITY OFFERING CELLULAR TELEPHONE
OR  PAGER SERVICE OR BUSINESS WITH WHICH HE OR SHE HAS THAT RELATIONSHIP
TO RECEIVE TEXT MESSAGES FROM THAT BUSINESS OR AFFILIATES OF THAT  BUSI-
NESS.  "AFFILIATE" MEANS ANY COMPANY THAT CONTROLS, IS CONTROLLED BY, OR
IS  UNDER  COMMON  CONTROL  WITH,  ANOTHER COMPANY. A SPECIFIC, SEPARATE
CONSENT MUST BE GIVEN FOR EACH INDIVIDUAL PERSON OR ENTITY, BUSINESS, OR
AFFILIATE.
  3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
STATE  OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN
INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS,
TO ENJOIN AND RESTRAIN THE CONTINUANCE OF  SUCH  VIOLATION;  AND  IF  IT
SHALL  APPEAR  TO  THE  SATISFACTION  OF  THE COURT OR JUSTICE, THAT THE
DEFENDANT HAS, IN FACT, VIOLATED  THIS  SECTION  AN  INJUNCTION  MAY  BE
ISSUED  BY  SUCH  COURT OR JUSTICE ENJOINING AND RESTRAINING ANY FURTHER
VIOLATION, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS,  IN  FACT,  BEEN
INJURED  OR DAMAGED THEREBY.  IN ANY SUCH PROCEEDING, THE COURT MAY MAKE
ALLOWANCES TO THE ATTORNEY GENERAL  AS  PROVIDED  IN  PARAGRAPH  SIX  OF
SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
TICE  LAW  AND  RULES, AND DIRECT RESTITUTION.  WHENEVER THE COURT SHALL
DETERMINE THAT  A  VIOLATION  OF  A  SUBDIVISION  OF  THIS  SECTION  HAS
OCCURRED,  THE  COURT  MAY  IMPOSE  A CIVIL PENALTY OF NOT MORE THAN TWO
THOUSAND DOLLARS PER CALL, UP TO A TOTAL OF NOT MORE THAN  TWENTY  THOU-
SAND  DOLLARS, FOR CALLS PLACED IN VIOLATION OF SUCH SUBDIVISIONS WITHIN
A CONTINUOUS SEVENTY-TWO HOUR PERIOD.    IN  CONNECTION  WITH  ANY  SUCH
PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF
AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  4. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY  GENERAL
PURSUANT  TO THIS SECTION, ANY PERSON WHO HAS RECEIVED A TEXT MESSAGE IN
VIOLATION OF SUBDIVISION ONE OF THIS SECTION MAY BRING AN ACTION IN  HIS
OR  HER  OWN  NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE, AN ACTION TO
RECOVER HIS OR HER ACTUAL DAMAGES OR FIFTY DOLLARS, WHICHEVER IS  GREAT-
ER,  OR  BOTH SUCH ACTIONS.   THE COURT MAY, IN ITS DISCRETION, INCREASE
THE AWARD OF DAMAGES TO AN AMOUNT NOT TO EXCEED THREE TIMES  THE  ACTUAL
DAMAGES  UP  TO  ONE  THOUSAND DOLLARS, IF THE COURT FINDS THE DEFENDANT
WILLFULLY OR KNOWINGLY VIOLATED SUCH SUBDIVISION. THE  COURT  MAY  AWARD
REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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