S T A T E O F N E W Y O R K
________________________________________________________________________
941
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. McDONOUGH, FINCH, KOLB, ALFANO, REILICH, OAKS,
POWELL -- Multi-Sponsored by -- M. of A. BARRA, BOYLAND, SAYWARD --
read once and referred to the Committee on Consumer Affairs and
Protection
AN ACT to amend the general business law, in relation to the no telemar-
keting sales calls, cellular telephone sales calls and facsimiles
statewide 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,
CELLULAR TELEPHONE SALES CALLS AND FACSIMILES statewide registry;
authorization of the transfer of telephone numbers on the no telemarket-
ing sales calls statewide registry to the national "do-not-call" regis-
try. 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;
d. "Doing business in this state" means conducting telephonic sales
calls, CELLULAR TELEPHONIC SALES CALLS OR FACSIMILES: (i) from a
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01454-01-9
A. 941 2
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. "Person" means any natural person, association, partnership, firm,
corporation and its affiliates or subsidiaries or other business entity;
g. "Telemarketer" means any person who, for financial profit or
commercial purposes in connection with telemarketing, makes telemarket-
ing sales calls, CELLULAR TELEPHONE SALES CALLS OR FACSIMILES to a
customer when the customer is in this state or any person who directly
controls or supervises the conduct of a telemarketer. For the purposes
of this section, "commercial purposes" shall mean the sale or offer for
sale of goods or services;
h. "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, CELLULAR
TELEPHONES OR FAX MACHINES and which involves more than one telephone
call, CELLULAR TELEPHONE CALL OR FACSIMILE by a telemarketer in which
the customer is located within the state at the time of the call OR
FACSIMILE. Telemarketing does not include the solicitation of sales
through media other than by telephone calls, CELLULAR TELEPHONE CALLS OR
FACSIMILES;
i. "Telemarketing sales call, CELLULAR TELEPHONE SALES CALL OR FACSIM-
ILE" means a telephone call, CELLULAR TELEPHONE CALL OR FACSIMILE made
by a telemarketer to a customer for the purpose of inducing payment or
the exchange of any other consideration for any goods or services;
j. "Unsolicited telemarketing sales call, UNSOLICITED CELLULAR TELE-
PHONE CALL OR UNSOLICITED FACSIMILE" means any telemarketing sales call,
UNSOLICITED CELLULAR TELEPHONE CALL OR UNSOLICITED FACSIMILE other than
a call OR FACSIMILE made:
(i) in response to an express written or verbal request of the custom-
er called OR FAXED; 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, CELLULAR TELEPHONE CALLS OR FACSIMILES 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, CELLULAR TELEPHONE CALLS OR FACSIMILES of such tele-
marketer.
2. a. The board is authorized to establish, manage, and maintain a no
telemarketing sales calls, CELLULAR TELEPHONE SALES CALLS AND FACSIMILES
statewide registry which shall contain a list of customers who do not
wish to receive unsolicited telemarketing sales calls, UNSOLICITED
CELLULAR TELEPHONE SALES CALLS OR FACSIMILES. 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, CELLULAR TELEPHONE SALES CALLS OR FACSIMILES registries for
more than two years, and the contract requires the vendor to provide the
no telemarketing sales calls, CELLULAR TELEPHONE SALES CALLS AND FACSIM-
ILES 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
A. 941 3
pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve as the New
York state no telemarketing sales calls, CELLULAR TELEPHONE SALES CALLS
AND FACSIMILES statewide registry provided for by this section. The
board is further authorized to take whatever administrative actions may
be necessary or appropriate for such transition including, but not
limited to, providing the telephone numbers of New York customers regis-
tered on the no telemarketing sales calls, CELLULAR TELEPHONE SALES
CALLS AND FACSIMILES statewide registry to the federal trade commission,
for inclusion on the national "do-not-call" registry.
3. No telemarketer or seller may make or cause to be made any unsolic-
ited telemarketing sales call, UNSOLICITED CELLULAR TELEPHONE SALES CALL
OR FACSIMILE to any customer when that customer'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. a. The board shall provide notice to customers of the establishment
of the national "do-not-call" registry. Any customer who wishes to be
included on such registry shall notify the federal trade commission 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. 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.
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. 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 written poli-
cies and procedures related to the requirements of this section;
b. the person has trained his or her personnel in the requirements of
this section;
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, CELLULAR TELE-
PHONE SALES CALL OR FACSIMILE is the result of error.
8. THE BOARD SHALL PROVIDE NOTICE TO CUSTOMERS OF THE INCLUSION OF
FACSIMILES IN THE NO TELEMARKETING SALES CALLS, CELLULAR TELEPHONE SALES
CALLS AND FACSIMILES REGISTRY.
S 2. This act shall take effect immediately. Provided, however, that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive date are authorized and directed to be made and completed on or
before such effective date.