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

                                  7563

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 14, 2009
                               ___________

Introduced  by M. of A. PHEFFER, ORTIZ, EDDINGTON, STIRPE, KOON, ALESSI,
  SPANO, RUSSELL, RAMOS, GREENE  --  Multi-Sponsored  by  --  M.  of  A.
  CASTRO,  CHRISTENSEN,  COLTON,  COOK,  CYMBROWITZ, DelMONTE, DINOWITZ,
  FIELDS,  GABRYSZAK,  GLICK,  GORDON,   GOTTFRIED,   GUNTHER,   HOOPER,
  HYER-SPENCER, JAFFEE, MAISEL, MAYERSOHN, McENENY, MENG, MILLMAN, REIL-
  LY, ZEBROWSKI -- (at request of the Consumer Protection Board) -- read
  once and referred to the Committee on Consumer Affairs and Protection

AN  ACT  to amend the general business law, in relation to providing for
  enhanced consumer protection measures and enforcement of  the  do-not-
  call 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
statewide registry; authorization of the transfer of  telephone  numbers
on  the  no telemarketing sales calls statewide registry to the national
"do-not-call" registry. 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;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08183-02-9

A. 7563                             2
              

  d.  "Doing  business  in this state" means conducting telephonic sales
calls: (i) from a 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 to a customer when the customer is in this state or  any
person  who directly controls or supervises the conduct of a telemarket-
er. 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 and which
involves more than one telephone call by a  telemarketer  in  which  the
customer  is located within the state at the time of the call.  Telemar-
keting does not include the solicitation of sales  through  media  other
than by telephone calls;
  i.  "Telemarketing  sales call" means a telephone call made by a tele-
marketer OR BY ANY OUTBOUND TELEPHONE CALLING TECHNOLOGY THAT DELIVERS A
PRERECORDED MESSAGE EITHER to  a  customer  OR  TO  THEIR  VOICEMAIL  OR
ANSWERING  MACHINE  SERVICE  for  the purpose of inducing payment or the
exchange of any other consideration for any goods or services;
  j. "Unsolicited telemarketing  sales  call"  means  any  telemarketing
sales call other than a call made:
  (i) in response to an express written or verbal request of the custom-
er called; 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 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 of such telemarketer.
  2.   TELEMARKETERS SHALL NOT ENGAGE IN  TELEMARKETING  TO  A  PERSON'S
RESIDENCE  AT  ANY TIME OTHER THAN BETWEEN 8:00 A.M. AND 9:00 P.M. LOCAL
TIME AND SHALL PROVIDE, IN A CLEAR AND COHERENT MANNER USING WORDS  WITH
COMMON  AND  EVERYDAY  MEANINGS,  AT THE BEGINNING OF EACH TELEMARKETING
SALES CALL ALL OF THE FOLLOWING INFORMATION:
  (I) THE TELEMARKETER'S NAME AND THE PERSON ON WHOSE BEHALF THE  SOLIC-
ITATION IS BEING MADE, IF OTHER THAN THE TELEMARKETER;
  (II) THE PURPOSE OF THE TELEPHONE CALL;
  (III)  THE  IDENTITY  OF THE GOODS OR SERVICES FOR WHICH A FEE WILL BE
CHARGED; AND
  (IV) THE COST OF THE GOODS OR SERVICES THAT ARE  THE  SUBJECT  OF  THE
CALL.
  3.  a. The board is authorized to establish, manage, and maintain a no
telemarketing sales calls statewide registry which shall contain a  list
of  customers who do not wish to receive unsolicited telemarketing sales
calls. 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  registries  for more than two
years, and the contract requires the vendor to provide the  no  telemar-

A. 7563                             3

keting  sales  calls  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
pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve as  the  New
York  state no telemarketing sales calls statewide registry provided for
by this section. The board is further authorized to take whatever admin-
istrative actions may be necessary or appropriate  for  such  transition
including,  but  not  limited to, providing the telephone numbers of New
York customers registered on the no telemarketing sales calls  statewide
registry  to the federal trade commission, for inclusion on the national
"do-not-call" registry.
  [3.] 4. No telemarketer or seller may make or cause  to  be  made  any
unsolicited  telemarketing  sales call to any customer when that custom-
er'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.]  5.  a. The board shall provide notice to customers of the estab-
lishment of the national "do-not-call" registry. Any customer who wishes
to be included on such registry shall notify the federal  trade  commis-
sion 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 is  the  result
of error.
  8.  THE BOARD SHALL PRESCRIBE RULES AND REGULATIONS TO ADMINISTER THIS
SECTION.
  S 2. This act shall take effect immediately.