Senate Bill S1365

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

                                  1365

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 29, 2009
                               ___________

Introduced  by  Sens. DILAN, ADAMS, BRESLIN, DIAZ, DUANE, HASSELL-THOMP-
  SON, HUNTLEY, C. JOHNSON, KRUEGER, MONTGOMERY, ONORATO, PARKER,  SAMP-
  SON,  SCHNEIDERMAN,  STAVISKY  --  read twice and ordered printed, and
  when printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business  law,  in  relation  to  increasing
  restrictions  on  the sending of unsolicited telefacsimile promotional
  messages and expanding the scope of remedies for violations

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

  Section  1.  Section 396-aa of the general business law, as amended by
chapter 393 of the laws of 2008, is amended to read as follows:
  S 396-aa. Unsolicited telefacsimile advertising. 1. It shall be unlaw-
ful for a person, corporation, partnership or  association  to  initiate
the  unsolicited  transmission of telefacsimile messages promoting goods
or services for purchase by the recipient of such messages. For purposes
of this section, "telefacsimile" shall mean every process in which elec-
tronic signals are transmitted by telephone lines  for  conversion  into
written  text,  WHETHER  TO  APPEAR  ON PAPER OR ON A COMPUTER SCREEN OR
OTHER COMPUTER MEDIUM.  This section shall not  apply  to  telefacsimile
messages  sent  to  a  recipient with whom the initiator has had a prior
contractual or business  relationship.  Notwithstanding  the  above,  it
shall  be  unlawful to initiate any telefacsimile message to a recipient
who has previously clearly indicated to the  initiator  by  any  verbal,
TELEPHONIC, written or electronic means that the recipient does not want
to receive telefacsimile messages from the initiator.
  2.  Every  unsolicited telefacsimile message sent to a recipient shall
contain a notice that informs the recipient of the ability,  granted  by
subdivision  one  of this section, to prevent the transmission of future
unsolicited telefacsimile messages.  Such  notice  shall  be  clear  and
conspicuous  and  on  the  first  page  of the telefacsimile message and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05017-01-9

              

S. 1365                             2

include a domestic contact telephone number and facsimile machine number
for the recipient to transmit such a request to the initiator.
  If  neither  the required telephone number or facsimile machine number
is a toll-free  number,  a  separate  cost-free  mechanism  including  a
website  address or email address, for a recipient to transmit a request
pursuant to such notice to the sender  of  the  message  shall  also  be
provided.  A  local  telephone  number also shall constitute a cost-free
mechanism so long as recipients are local and will not  incur  any  long
distance  or  other  separate charges for calls made to such number. The
telephone and facsimile numbers and cost-free  mechanism  identified  in
the  notice  must  permit an individual or business to make a request to
prevent the transmission of future  unsolicited  advertisements  twenty-
four hours a day, seven days a week.
  3.  [Any  person  who  has  received  a  telefacsimile transmission in
violation of this section may bring an action in his own name to recover
his actual damages or one hundred dollars, whichever is greater.]  WHEN-
EVER  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 BY A SPECIAL PROCEED-
ING  TO  ISSUE  AN  INJUNCTION, AND UPON NOTICE TO THE RESPONDENT 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 RESPONDENT 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. WHENEVER THE COURT
SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT
MAY  IMPOSE  A  CIVIL  PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS FOR
EACH VIOLATION. IN CONNECTION WITH ANY SUCH  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 PRAC-
TICE LAW AND RULES.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.