S T A T E   O F   N E W   Y O R K
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                                  7498

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 13, 2009
                               ___________

Introduced by M. of A. MILLER -- read once and referred to the Committee
  on Consumer Affairs and Protection

AN  ACT  to  amend  the  general business law, in relation to the use of
  automatic telephone answering devices

  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
391-q to read as follows:
  S  391-Q.  USE  OF  AUTOMATIC  TELEPHONE ANSWERING DEVICES. 1.   DEFI-
NITIONS. AS USED IN THIS SECTION, THE FOLLOWING  TERMS  SHALL  HAVE  THE
FOLLOWING MEANINGS:
  (A)  "AUTOMATIC TELEPHONE ANSWERING DEVICE" MEANS ANY AUTOMATIC EQUIP-
MENT USED TO ANSWER A TELEPHONE BY MEANS OTHER  THAN  THE  ACTION  OF  A
HUMAN BEING.
  (B)  "OPERATOR"  MEANS  ANY NON-RESIDENTIAL USER OF AN AUTOMATIC TELE-
PHONE ANSWERING DEVICE,  AND  INCLUDES  ALL  BUSINESS,  COMMERCIAL,  AND
PROFESSIONAL  ENTITIES, NONPROFIT ENTITIES, THE STATE, AND ALL POLITICAL
SUBDIVISIONS OF THE STATE. THE TERM OPERATOR ALSO INCLUDES  ANY  PERSON,
FIRM,  CORPORATION,  OR OTHER LEGAL ENTITY NOT PHYSICALLY PRESENT IN THE
STATE BUT DOING BUSINESS IN THE STATE SO AS TO BE SUBJECT TO THE  JURIS-
DICTION  OF  THE  STATE  AS PROVIDED IN SUBDIVISION (A) OF SECTION THREE
HUNDRED TWO OF THE CIVIL PRACTICE LAW AND RULES.
  2. NO OPERATOR SHALL EMPLOY OR USE AN  AUTOMATIC  TELEPHONE  ANSWERING
DEVICE IN A MANNER INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.
  3.  EVERY  SUCH  DEVICE  SHALL, IMMEDIATELY UPON ANSWERING A TELEPHONE
CALL, ANNOUNCE: (A) THAT THE CALL IS  BEING  ANSWERED  BY  AN  AUTOMATIC
DEVICE,  (B) WHETHER OR NOT THE CALLER CAN BE CONNECTED TO A HUMAN BEING
VIA THE INSTANT CONNECTION, AND IF SO, HOW, AND (C)  WHEN,  IF  EVER,  A
HUMAN  BEING IS AVAILABLE TO TAKE THE CALLER'S CALL, IF A HUMAN BEING IS
NOT THEN AVAILABLE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09658-01-9

              

A. 7498                             2

  4. WHEN CONNECTION TO A HUMAN BEING  VIA  THE  INSTANT  CONNECTION  IS
AVAILABLE,  SUCH  CONNECTION  MUST  BE MADE WITHIN SEVEN MINUTES OF SUCH
DEVICE'S FIRST ANSWERING THE CALL, AND THE DEVICE MUST SO  ANNOUNCE.  IF
SUCH  DEVICE  IS UNABLE TO COMPLETE SUCH A CONNECTION AT THE END OF SUCH
SEVEN  MINUTE  PERIOD,  THE DEVICE MUST ACCEPT A MESSAGE FROM THE CALLER
ALLOWING THE CALLER TO GIVE HIS NAME AND A TELEPHONE NUMBER AT WHICH  HE
MAY  BE  REACHED.  IN SUCH EVENT, A HUMAN BEING MUST PLACE A CALL TO THE
CALLER, AT THE OPERATOR'S EXPENSE, WITHIN ONE HOUR OF  SUCH  FAILURE  TO
CONNECT  AFTER  THE  SEVEN MINUTE PERIOD. IF THIS CALL IS NOT COMPLETED,
THE EFFORT TO COMPLETE SUCH CALL MUST BE REPEATED THREE TIMES BEFORE  IT
MAY BE ABANDONED.
  5.  IF  ANY OPERATOR SHALL CAUSE TO BE LISTED IN A TELEPHONE DIRECTORY
OR SHALL OTHERWISE PUBLISH OR ADVERTISE A TELEPHONE NUMBER CONNECTED  TO
AN  AUTOMATIC  TELEPHONE ANSWERING DEVICE, WHICH DEVICE DOES NOT CONNECT
TO A HUMAN BEING, SUCH LISTING, PUBLICATION, OR  ADVERTISEMENT  MUST  SO
STATE.
  6. 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
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.  WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION
OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE A  CIVIL  PENALTY  OF
ONE  HUNDRED DOLLARS FOR A FIRST VIOLATION AND OF UP TO ONE THOUSAND FOR
A SECOND  OR  SUBSEQUENT  VIOLATION  WITHIN  A  ONE  YEAR  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.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.