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

                                  2280

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 15, 2009
                               ___________

Introduced  by  M. of A. REILICH, BURLING, FINCH, KOLB, ERRIGO -- Multi-
  Sponsored by -- M. of A. ALFANO, BACALLES, McDONOUGH, TOWNSEND -- read
  once and referred to the Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in relation to the  regulation
  of unsolicited commercial text messages to wireless telephones

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

  Section 1. The general business law is amended by adding a new article
30-B to read as follows:
                               ARTICLE 30-B
                  UNSOLICITED COMMERCIAL TEXT MESSAGING
SECTION 645. DEFINITIONS.
        646. PROHIBITED ACTS.
        647. CIVIL REMEDIES FOR NONCOMPLIANCE.
        648. APPLICABILITY.
  S 645. DEFINITIONS. FOR THE PURPOSES OF THIS  ARTICLE,  THE  FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  1.  "COMMERCIAL TEXT MESSAGING" SHALL MEAN A TYPED MESSAGE TRANSMITTED
TO A WIRELESS TELEPHONE NUMBER, REGARDLESS OF WHETHER  SUCH  MESSAGE  IS
VIEWED,  STORED  FOR  RETRIEVAL  AT  ANOTHER TIME, PRINTED ONTO PAPER OR
OTHER SIMILAR MATERIAL, OR FILTERED OR SCREENED, THAT:
  (A) CONTAINS AN ADVERTISEMENT FOR THE SALE OF A  PRODUCT,  SERVICE  OR
REAL ESTATE;
  (B) CONTAINS A SOLICITATION FOR THE USE OF A TELEPHONE NUMBER, THE USE
OF  WHICH  CONNECTS  THE USER TO A PERSON OR SERVICE THAT ADVERTISES THE
SALE OF OR SELLS A PRODUCT, SERVICE OR REAL ESTATE; OR
  (C) PROMOTES THE USE OF OR CONTAINS A LIST OF  ONE  OR  MORE  INTERNET
SITES  THAT  CONTAIN  AN ADVERTISEMENT REFERRED TO IN PARAGRAPH (A) OR A
SOLICITATION REFERRED TO IN PARAGRAPH (B) OF THIS SUBDIVISION;
  2. "INITIATE THE TRANSMISSION" SHALL MEAN TO TRANSMIT A  TEXT  MESSAGE
TO  A  WIRELESS  TELEPHONE  NUMBER,  BUT SUCH TERM SHALL NOT INCLUDE ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04363-01-9
              

A. 2280                             2

INTERVENING INTERACTIVE COMPUTER SERVICE WHOSE FACILITIES MAY HAVE  BEEN
USED  TO RELAY, HANDLE, OR OTHERWISE RETRANSMIT THE TEXT MESSAGE, UNLESS
THE INTERVENING INTERACTIVE SERVICE  PROVIDER  KNOWINGLY  AND  WILLFULLY
RETRANSMITS ANY TEXT MESSAGE IN VIOLATION OF THIS ARTICLE;
  3.  "PREEXISTING BUSINESS RELATIONSHIP" SHALL MEAN MUTUAL BUSINESS-RE-
LATED COMMUNICATIONS THAT OCCURRED BETWEEN THE SENDER OF THE  COMMERCIAL
TEXT MESSAGE AND THE RECIPIENT PRIOR TO THE TRANSMISSION OF SUCH COMMER-
CIAL TEXT MESSAGE;
  4.  "TRANSMIT OR CAUSE TO BE TRANSMITTED" SHALL MEAN THE ACTION BY THE
ORIGINAL OR SUBSEQUENT SENDER OF THE COMMERCIAL TEXT MESSAGE, BUT  SHALL
NEITHER  INCLUDE  NOR  REFER  TO  THE  ACTION  OF ANY WIRELESS TELEPHONE
SERVICE PROVIDER TO THE EXTENT THE SERVICE PROVIDER MERELY CARRIES  THAT
TRANSMISSION OVER ITS NETWORK.
  S 646. PROHIBITED ACTS. NO PERSON SHALL TRANSMIT OR CAUSE TO BE TRANS-
MITTED  AN  UNSOLICITED  COMMERCIAL TEXT MESSAGE TO A WIRELESS TELEPHONE
NUMBER THAT THE PERSON KNOWS OR HAS REASON TO KNOW IS HELD BY A RESIDENT
OF THE STATE.
  S 647. CIVIL REMEDIES FOR NONCOMPLIANCE. 1. UPON THE COMMISSION  OF  A
"PROHIBITED  ACT"  AS  DEFINED  IN SECTION SIX HUNDRED FORTY-SIX OF THIS
ARTICLE AN APPLICATION MAY BE MADE BY THE PUBLIC SERVICE COMMISSION TO A
COURT HAVING JURISDICTION TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE
RESPONDENT OF NOT LESS THAN  FIVE  DAYS,  TO  ENJOIN  AND  RESTRAIN  THE
CONTINUANCE OF SUCH VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF
THE  COURT  THAT  THE  RESPONDENT  HAS  COMMITTED  A "PROHIBITED ACT" AS
DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS ARTICLE THE COURT SHALL
ENJOIN AND RESTRAIN ANY FURTHER VIOLATION WITHOUT REQUIRING  PROOF  THAT
ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
  2.  IN  A PROCEEDING BROUGHT UNDER THIS SECTION, THE COURT MAY MAKE AN
ALLOWANCE TO THE PUBLIC SERVICE COMMISSION PURSUANT TO PARAGRAPH TWO  OF
SUBDIVISION  (A)  OF  SECTION  EIGHT THOUSAND THREE HUNDRED THREE OF THE
CIVIL PRACTICE LAW AND RULES.
  3. WHENEVER THE COURT SHALL DETERMINE THAT A RESPONDENT HAS  COMMITTED
A  "PROHIBITED  ACT" AS DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS
ARTICLE, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT  MORE  THAN  FIVE
HUNDRED  DOLLARS  FOR  EACH  UNSOLICITED  TEXT  MESSAGE TRANSMITTED TO A
RECIPIENT.
  S 648. APPLICABILITY. 1. A WIRELESS TELEPHONE SERVICE  PROVIDER  SHALL
NOT  BE  HELD  LIABLE  FOR  ANY PENALTY IN ANY ACTION BROUGHT UNDER THIS
ARTICLE, UNLESS THE WIRELESS SERVICE PROVIDER  KNOWINGLY  AND  WILLFULLY
TRANSMITS TEXT MESSAGES IN VIOLATION OF THIS ARTICLE.
  2.  A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
ANY PENALTY IN ANY ACTION  BROUGHT  UNDER  THIS  ARTICLE  FOR  RELAYING,
HANDLING,  OR  OTHERWISE  RETRANSMITTING TEXT MESSAGES WHEN THE WIRELESS
TELEPHONE SERVICE PROVIDER IS ACTING  AS  AN  INTERMEDIARY  BETWEEN  THE
PERSON WHO INITIATED THE TRANSMISSION AND THE INTENDED RECIPIENT.
  3.  A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
ANY PENALTY IN ANY ACTION BROUGHT UNDER  THIS  ARTICLE  FOR  FAILING  TO
BLOCK THE RECEIPT OR TRANSMISSION THROUGH ITS SERVICE OR PROPERTY OF ANY
TEXT  MESSAGE  WHICH  IT  REASONABLY  BELIEVES  IS  OR  WILL  BE SENT IN
VIOLATION OF THIS ARTICLE.
  4. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE  FOR
ANY ACTION VOLUNTARILY TAKEN IN GOOD FAITH TO BLOCK THE RECEIPT OR TRAN-
SMISSION  THROUGH ITS SERVICE OR PROPERTY OF ANY COMMERCIAL TEXT MESSAGE
WHICH IT REASONABLY BELIEVES IS OR WILL BE SENT  IN  VIOLATION  OF  THIS
ARTICLE.

A. 2280                             3

  5.  NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-
IENT WITH WHOM THE INITIATOR HAS A PREEXISTING BUSINESS RELATIONSHIP  OR
PERSONAL RELATIONSHIP.
  6.  NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-
IENT WHEN THE RECIPIENT HAS INVITED OR EXPRESSLY  PERMITTED  THE  TRANS-
MISSION OF SUCH TEXT MESSAGE.
  7.  FOR PURPOSES OF THIS ARTICLE, A PERSON HAS REASON TO KNOW THAT THE
INTENDED RECIPIENT OF A COMMERCIAL TEXT MESSAGE IS  A  RESIDENT  OF  THE
STATE  IF  THAT  INFORMATION IS AVAILABLE, UPON REQUEST, FROM THE PUBLIC
SERVICE COMMISSION.
  8. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED  SO  AS  TO  NULLIFY  OR
IMPAIR ANY OTHER RIGHTS OR REMEDIES THAT MAY BE AVAILABLE BY COMMON LAW,
BY STATUTE, OR OTHERWISE.
  9.  NOTHING  IN  THIS  ARTICLE  SHALL BE CONSTRUED SO AS TO NULLIFY OR
IMPAIR ANY TRANSACTION, REPORTING, DISCLOSURE OR OTHER ACTIVITY  PERMIT-
TED  UNDER  THE  PROVISIONS OF TITLE V OF THE FEDERAL GRAMM-LEACH-BLILEY
ACT (PUB. L.  NO. 106-102), THE FEDERAL FAIR CREDIT  REPORTING  ACT  (15
U.S.C. 1681 ET SEQ.), AND OTHER APPLICABLE PROVISIONS OF FEDERAL LAW.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.