S T A T E O F N E W Y O R K
________________________________________________________________________
4173
2009-2010 Regular Sessions
I N A S S E M B L Y
January 30, 2009
___________
Introduced by M. of A. COOK, JOHN -- Multi-Sponsored by -- M. of A.
AUBRY, GIANARIS, HOOPER, V. LOPEZ, McENENY, REILLY, TOWNS, WRIGHT --
read once and referred to the Committee on Corporations, Authorities
and Commissions
AN ACT to amend the public service law, in relation to prohibiting
certain telephone solicitation calls
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public service law is amended by adding a new section
92-g to read as follows:
S 92-G. TELEPHONE SOLICITATION CALLS PROHIBITED DURING CERTAIN HOURS.
1. AS USED IN THIS SECTION THE TERM: (A) "TELEPHONE SOLICITATION CALL"
SHALL MEAN A CALL OR MESSAGE TO A RESIDENTIAL TELEPHONE CUSTOMER FOR THE
PURPOSE OF SOLICITING A PURCHASE, LEASE, OR RENTAL OF, OR INVESTMENT IN,
OR CONTRACT OR EXTENSION OF CREDIT FOR GOODS, SERVICES OR PROPERTY, OR
FOR THE PURPOSE OF OBTAINING INFORMATION FOR SUCH PURPOSES. SUCH TERM
SHALL NOT INCLUDE A CALL MADE TO A RESIDENTIAL TELEPHONE CUSTOMER IN
RESPONSE TO AN INQUIRY OR INVITATION, BASED ON AN ESTABLISHED BUSINESS
RELATIONSHIP, OR AFTER RECEIPT OF EXPRESS PERMISSION.
(B) "PERSON" SHALL MEAN ANY INDIVIDUAL, FIRM, ORGANIZATION, PARTNER-
SHIP, ASSOCIATION, CORPORATION OR OTHER BUSINESS ENTITY. SUCH TERM
SHALL NOT INCLUDE ANY NON-PROFIT ORGANIZATION.
2. NO PERSON SHALL PLACE A TELEPHONE SOLICITATION CALL BETWEEN THE
HOURS OF EIGHT P.M. AND EIGHT A.M.
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 VIOLATIONS; 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01254-01-9
A. 4173 2
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 THIS SECTION HAS OCCURRED, THE COURT MAY
IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE HUNDRED DOLLARS PER CALL, UP
TO A TOTAL OF NOT MORE THAN TWENTY THOUSAND DOLLARS, FOR CALLS PLACED IN
VIOLATION OF THIS SECTION 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 TELEPHONE CALL
IN VIOLATION 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 FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER, 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 OR ONE
THOUSAND FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER, IF THE COURT FINDS
THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS SECTION. THE COURT
MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.