S T A T E   O F   N E W   Y O R K
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                                  4360

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2009
                               ___________

Introduced  by  M. of A. BRADLEY, DINOWITZ, MARKEY, FIELDS, KOON, GALEF,
  JAFFEE, BENEDETTO, GABRYSZAK, PAULIN, LATIMER -- Multi-Sponsored by --
  M. of A. BOYLAND, CHRISTENSEN, LIFTON, ORTIZ, PHEFFER, REILLY --  read
  once and referred to the Committee on Consumer Affairs and Protection

AN  ACT to amend the general business law and the civil practice law and
  rules,  in  relation  to  prohibiting  individuals  from  transmitting
  misleading  or  inaccurate  caller identification information with the
  intent to defraud, harass, mislead, or cause harm to any person

  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 section
399-ppp to read as follows:
  S 399-PPP. PROHIBITION ON PROVISION OF DECEPTIVE CALLER IDENTIFICATION
INFORMATION. 1. IT SHALL BE UNLAWFUL FOR ANY PERSON WITHIN THE STATE, IN
CONNECTION WITH ANY TELECOMMUNICATIONS SERVICE OR VOIP SERVICE, TO CAUSE
ANY  CALLER  IDENTIFICATION SERVICE TO TRANSMIT MISLEADING OR INACCURATE
CALLER IDENTIFICATION INFORMATION, WITH THE INTENT TO  DEFRAUD,  HARASS,
MISLEAD,  OR  CAUSE  HARM  TO  ANY  PERSON WHEN MAKING A CALL TO ANOTHER
PERSON WITHIN THE STATE.
  2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT  OR  RESTRICT
ANY  PERSON  FROM  BLOCKING  THE CAPABILITY OF ANY CALLER IDENTIFICATION
SERVICE TO TRANSMIT CALLER IDENTIFICATION INFORMATION.
  3. FOR PURPOSES OF THIS SECTION:
  (A) "CALLER IDENTIFICATION INFORMATION" MEANS INFORMATION PROVIDED  TO
AN  END  USER BY A CALLER IDENTIFICATION SERVICE REGARDING THE TELEPHONE
NUMBER OF, OR OTHER INFORMATION REGARDING THE  ORIGINATION  OF,  A  CALL
MADE USING A TELECOMMUNICATIONS SERVICE OR VOIP SERVICE.
  (B)  "CALLER  IDENTIFICATION  SERVICE"  MEANS  ANY  SERVICE  OR DEVICE
DESIGNED TO PROVIDE THE USER OF THE SERVICE OR DEVICE WITH THE TELEPHONE
NUMBER OF, OR OTHER INFORMATION REGARDING THE  ORIGINATION  OF,  A  CALL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00314-01-9

              

A. 4360                             2

MADE  USING  A  TELECOMMUNICATIONS  SERVICE  OR  VOIP SERVICE. SUCH TERM
INCLUDES AUTOMATIC NUMBER IDENTIFICATION SERVICES.
  (C) "VOIP SERVICE" MEANS A SERVICE THAT:
  (I)  PROVIDES  REAL-TIME  VOICE COMMUNICATIONS TRANSMITTED THROUGH END
USER EQUIPMENT USING TCP/IP PROTOCOL, OR A SUCCESSOR PROTOCOL, FOR A FEE
OR WITHOUT A FEE; AND
  (II) IS OFFERED TO THE PUBLIC, OR SUCH  CLASSES  OF  USERS  AS  TO  BE
EFFECTIVELY  AVAILABLE  TO  THE  PUBLIC  (WHETHER  PART  OF  A BUNDLE OF
SERVICES OR SEPARATELY); AND
  (III) HAS THE CAPABILITY TO ORIGINATE TRAFFIC TO, OR TERMINATE TRAFFIC
FROM, THE PUBLIC SWITCHED TELEPHONE NETWORK.
  4. 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, TO IMMEDIATELY ENJOIN  AND
RESTRAIN  THE  CONTINUANCE OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR TO
THE SATISFACTION OF THE COURT OR JUSTICE,  BY  A  PREPONDERANCE  OF  THE
EVIDENCE,  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. 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. IN ADDITION TO ANY SUCH ALLOWANCES, THE COURT MAY
DIRECT RESTITUTION TO ANY VICTIM UPON A SHOWING OF DAMAGES BY A  PREPON-
DERANCE  OF THE EVIDENCE.  IN ADDITION TO ANY SUCH 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  TWO  THOUSAND
DOLLARS  PER  CALL,  UP TO A TOTAL AGGREGATE AMOUNT OF NOT MORE THAN ONE
HUNDRED THOUSAND DOLLARS, FOR ALL 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.
  5. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY  GENERAL
PURSUANT  TO THIS SECTION, ANY PERSON WHOSE CALLER IDENTIFICATION INFOR-
MATION WAS USED IN CONNECTION WITH A VIOLATION OF THIS  SECTION  OR  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 THE GREATER OF (A) HIS OR HER ACTUAL DAMAGES, OR
(B) AN AMOUNT EQUAL TO NOT MORE THAN FIVE HUNDRED DOLLARS PER  CALL,  UP
TO  A  TOTAL  AGGREGATE  AMOUNT  OF  NOT  MORE THAN TWENTY-FIVE THOUSAND
DOLLARS FOR ALL CALLS PLACED IN  VIOLATION  OF  THIS  SECTION  WITHIN  A
CONTINUOUS  SEVENTY-TWO  HOUR  PERIOD;  OR BOTH SUCH ACTIONS.  THE COURT
SHALL AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S 2. Paragraph 6 of subdivision (a) of section 8303 of the civil prac-
tice law and rules, as amended by chapter 530 of the laws  of  2002,  is
amended to read as follows:
  6. to the plaintiffs in an action or proceeding brought by the [attor-
ney-general] ATTORNEY GENERAL under [articles] ARTICLE twenty-two, twen-
ty-two-A,  twenty-three-A or thirty-three or section three hundred nine-
ty-one-b, THREE HUNDRED NINETY-NINE-PPP, or five hundred twenty-a of the
general business law, or under subdivision twelve of section sixty-three
of the executive law, or under article  twenty-three  of  the  arts  and
cultural  affairs  law,  or  in  an  action or proceeding brought by the
[attorney-general]  ATTORNEY  GENERAL  under  applicable   statutes   to

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dissolve  a  corporation or for usurpation of public office, or unlawful
exercise of franchise or of corporate right, a  sum  not  exceeding  two
thousand dollars against each defendant.
  S  3.  This  act  shall take effect on the sixtieth day after it shall
have become a law.