S T A T E O F N E W Y O R K
________________________________________________________________________
8839--A
2009-2010 Regular Sessions
I N A S S E M B L Y
June 11, 2009
___________
Introduced by M. of A. PHEFFER, JAFFEE, FIELDS, SPANO, CYMBROWITZ,
CHRISTENSEN, ALESSI, ORTIZ, KOON, STIRPE -- Multi-Sponsored by -- M.
of A. BRENNAN, DelMONTE, GABRYSZAK, GIBSON, GLICK, GOTTFRIED, JOHN,
LUPARDO, MAGEE, MAISEL, McENENY, MENG, PERRY, TITONE, WEINSTEIN, WEIS-
ENBERG -- read once and referred to the Committee on Consumer Affairs
and Protection -- reported and referred to the Committee on Codes --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the general business law, in relation to providing for
enhanced consumer protection measures and enforcement of the do-not-
call registry
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 399-z of the general business law, as amended by
chapter 124 of the laws of 2003, paragraph j of subdivision 1 as amended
by chapter 214 of the laws of 2005, subdivision 3 as amended by chapter
69 of the laws of 2007, paragraph a of subdivision 6 as amended by chap-
ter 417 of the laws of 2004 and paragraph a of subdivision 7 as amended
by chapter 263 of the laws of 2006, is amended to read as follows:
S 399-z. Telemarketing; establishment of no telemarketing sales calls
statewide registry; authorization of the transfer of telephone numbers
on the no telemarketing sales calls statewide registry to the national
"do-not-call" registry. 1. As used in this section, the following terms
shall have the following meanings:
a. "Board" shall mean the consumer protection board;
b. "Director" means the executive director of the consumer protection
board;
c. "Customer" means any natural person who is a resident of this state
and who is or may be required to pay for or to exchange consideration
for goods and services offered through telemarketing;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A LBD14312-04-9
A. 8839--A 2
d. "Doing business in this state" means conducting telephonic sales
calls: (i) from a location in this state; or (ii) from a location
outside of this state to consumers residing in this state;
e. "Goods and services" means any goods and services, and shall
include any real property or any tangible personal property or services
of any kind;
f. "NEGATIVE OPTION FEATURE" MEANS, IN AN OFFER OR AGREEMENT TO SELL
OR PROVIDE ANY GOODS OR SERVICES, A PROVISION UNDER WHICH THE CUSTOMER'S
SILENCE OR FAILURE TO TAKE AN AFFIRMATIVE ACTION TO REJECT SUCH GOODS OR
SERVICES OR TO CANCEL THE AGREEMENT IS INTERPRETED BY THE SELLER AS
ACCEPTANCE OF THE OFFER.
G. "Person" means any natural person, association, partnership, firm,
corporation and its affiliates or subsidiaries or other business entity;
[g.] H. "Telemarketer" means any person who, for financial profit or
commercial purposes in connection with telemarketing, makes telemarket-
ing sales calls to a customer when the customer is in this state or any
person who directly controls or supervises the conduct of a telemarket-
er. For the purposes of this section, "commercial purposes" shall mean
the sale or offer for sale of goods or services;
[h]. I. "Telemarketing" means any plan, program or campaign which is
conducted to induce payment or the exchange of any other consideration
for any goods or services by use of one or more telephones and which
involves more than one telephone call by a telemarketer in which the
customer is located within the state at the time of the call. Telemar-
keting does not include the solicitation of sales through media other
than by telephone calls;
[i.] J. "Telemarketing sales call" means a telephone call made by a
telemarketer OR BY ANY OUTBOUND TELEPHONE CALLING TECHNOLOGY THAT DELIV-
ERS A PRERECORDED MESSAGE EITHER to a customer OR TO THEIR VOICEMAIL OR
ANSWERING MACHINE SERVICE for the purpose of inducing payment or the
exchange of any other consideration for any goods or services;
[j.] K. "Unsolicited telemarketing sales call" means any telemarketing
sales call other than a call made:
(i) in response to an express written or verbal request of the custom-
er called; or
(ii) in connection with an established business relationship, which
has not been terminated by either party, unless such customer has stated
to the telemarketer that such customer no longer wishes to receive the
telemarketing sales calls of such telemarketer[; or
(iii) to an existing customer, unless such customer has stated to the
telemarketer that such customer no longer wishes to receive the telemar-
keting sales calls of such telemarketer].
2. [a.] NO TELEMARKETER OR SELLER SHALL ENGAGE IN TELEMARKETING AT
ANY TIME OTHER THAN BETWEEN 8:00 A.M. AND 9:00 P.M. LOCAL TIME UNLESS
THE CONSUMER HAS GIVEN HIS OR HER EXPRESS CONSENT TO THE CALL AT A
DIFFERENT TIME, AND SHALL PROVIDE, IN A CLEAR AND COHERENT MANNER USING
WORDS WITH COMMON AND EVERYDAY MEANINGS, AT THE BEGINNING OF EACH TELE-
MARKETING SALES CALL ALL OF THE FOLLOWING INFORMATION:
(I) THE TELEMARKETER'S NAME AND THE PERSON ON WHOSE BEHALF THE SOLIC-
ITATION IS BEING MADE, IF OTHER THAN THE TELEMARKETER;
(II) THE PURPOSE OF THE TELEPHONE CALL; AND
(III) THE IDENTITY OF THE GOODS OR SERVICES FOR WHICH A FEE WILL BE
CHARGED.
3. PRIOR TO THE PURCHASE OF ANY GOOD OR SERVICE TELEMARKETERS SHALL
DISCLOSE TO THE CUSTOMER THE COST OF THE GOODS OR SERVICES THAT ARE THE
SUBJECT OF THE CALL AND IF THE OFFER INCLUDES A NEGATIVE OPTION FEATURE,
A. 8839--A 3
ALL MATERIAL TERMS AND CONDITIONS OF THE NEGATIVE OPTION FEATURE,
INCLUDING, BUT NOT LIMITED TO THE FACT THAT THE CUSTOMER'S ACCOUNT WILL
BE CHARGED UNLESS THE CUSTOMER TAKES AN AFFIRMATIVE ACTION TO AVOID THE
CHARGES, THE DATES THE CHARGES WILL BE SUBMITTED FOR PAYMENT, AND THE
SPECIFIC STEPS THE CUSTOMER MUST TAKE TO AVOID THE CHARGE.
4. A. The board is authorized to establish, manage, and maintain a no
telemarketing sales calls statewide registry which shall contain a list
of customers who do not wish to receive unsolicited telemarketing sales
calls. The board may contract with a private vendor to establish, manage
and maintain such registry, provided the private vendor has maintained
national no telemarketing sales calls registries for more than two
years, and the contract requires the vendor to provide the no telemar-
keting sales calls registry in a printed hard copy format and in any
other format as prescribed by the board.
b. The board is authorized to have the national "do-not-call" registry
established, managed and maintained by the federal trade commission
pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve as the New
York state no telemarketing sales calls statewide registry provided for
by this section. The board is further authorized to take whatever admin-
istrative actions may be necessary or appropriate for such transition
including, but not limited to, providing the telephone numbers of New
York customers registered on the no telemarketing sales calls statewide
registry to the federal trade commission, for inclusion on the national
"do-not-call" registry.
[3.] 5. No telemarketer or seller may make or cause to be made any
unsolicited telemarketing sales call to any customer when that custom-
er's telephone number has been on the national "do-not-call" registry,
established by the federal trade commission, for a period of thirty-one
days prior to the date the call is made, pursuant to 16 CFR Section
310.4(b)(1)(iii)(B).
[4.] 6. a. The board shall provide notice to customers of the estab-
lishment of the national "do-not-call" registry. Any customer who wishes
to be included on such registry shall notify the federal trade commis-
sion as directed by relevant federal regulations.
b. Any company that provides local telephone directories to customers
in this state shall inform its customers of the provisions of this
section by means of publishing a notice in such local telephone directo-
ries.
[5. The board shall prescribe rules and regulations to administer this
section.
6.] 7. WHEN THE BOARD HAS REASON TO BELIEVE A TELEMARKETER HAS ENGAGED
IN REPEATED UNLAWFUL ACTS IN VIOLATION OF THIS SECTION, OR WHEN A NOTICE
OF HEARING HAS BEEN ISSUED PURSUANT TO SUBDIVISION EIGHT OF THIS
SECTION, THE BOARD MAY REQUEST IN WRITING THE PRODUCTION OF RELEVANT
DOCUMENTS AND RECORDS AS PART OF ITS INVESTIGATION. IF THE PERSON UPON
WHOM SUCH REQUEST WAS MADE FAILS TO PRODUCE THE DOCUMENTS OR RECORDS
WITHIN THIRTY DAYS AFTER THE DATE OF THE REQUEST, THE BOARD MAY ISSUE
AND SERVE SUBPOENAS TO COMPEL THE PRODUCTION OF SUCH DOCUMENTS AND
RECORDS. IF ANY PERSON SHALL REFUSE TO COMPLY WITH A SUBPOENA ISSUED
UNDER THIS SECTION, THE BOARD MAY PETITION A COURT OF COMPETENT JURIS-
DICTION TO ENFORCE THE SUBPOENA AND SUCH SANCTIONS AS THE COURT MAY
DIRECT.
8. a. Where it is determined after hearing that any person has
violated one or more provisions of this section, the director, or any
person deputized or so designated by him or her may assess a fine not to
exceed eleven thousand dollars for each violation.
A. 8839--A 4
b. Any proceeding conducted pursuant to paragraph a of this subdivi-
sion shall be subject to the state administrative procedure act.
c. Nothing in this subdivision shall be construed to restrict any
right which any person may have under any other statute or at common
law.
[7.] 9. A person shall not be held liable for violating this section
if:
a. the person has obtained a version of the "do-not-call" registry
from the federal trade commission no more than thirty-one days prior to
the date any telemarketing call is made, pursuant to 16 C.F.R. Section
310.4(b)(1)(iii)(B), and has established [and], implemented AND UPDATED
written policies and procedures related to the requirements of this
section PRIOR TO THE DATE ANY TELEMARKETING CALL IS MADE;
b. the person has trained his or her personnel in the requirements of
this section; AND
c. the person maintains records demonstrating compliance with para-
graphs a and b of this subdivision and the requirements of this
section[; and
d. any subsequent unsolicited telemarketing sales call is the result
of error].
10. THE BOARD SHALL PRESCRIBE RULES AND REGULATIONS TO ADMINISTER
THIS SECTION.
S 2. This act shall take effect on the one hundred twentieth day
after it shall have become a law.