NY State Senate Bill 2009-S3763

Senate Bill S3763

2009-2010 Legislative Session

Provides for enhanced consumer protection measures and enforcement of the do-not-call registry

download bill text pdf

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to consumer protection
May 05, 2009	reported and committed to codes
Mar 31, 2009	referred to consumer protection

2009-S3763 (ACTIVE) - Details

See Assembly Version of this Bill:: A7563
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd §399-z, Gen Bus L

2009-S3763 (ACTIVE) - Summary

Provides for enhanced consumer protection measures and enforcement of the do-not-call registry; authorizes the promulgation of necessary rules and regulations.

2009-S3763 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3763

 TITLE OF BILL :

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


 PURPOSE OF THE BILL :

This bill amends the Do-Not-Call law to create parity with the Federal
Trade Commission's Telemarketing Sales Rule. The bill expressly
prohibits pre-recorded telemarketing sales calls.

 SUMMARY OF PROVISIONS :

Section 1 of the bill amends General Business Law (GBL) § 399-z (1)
(j) to include within the definition of "telemarketing sales call" any
outbound telephone calling technology that delivers a prerecorded
unsolicited telemarketing message to a customer or to his or her
voicemail or answering machine service.

Section 1 of the bill also adds a new subsection 2 to § 399-z to limit
the time of day that a telemarketer may call and to require a
telemarketer to provide consumers with its name, the purpose of the

call, and the identity and cost of the goods or services being
offered. This section also renumbers various provisions in the
interest of consistency with the amended law.

Section 2 of the bill provides that it would take effect immediately.

 EXISTING LAW :

Currently, GBL § 399-z provides consumers protection from unsolicited
telemarketing sales calls, under the Do-Not-Call law.

The federal Telemarketing Sales Rule, or TSR, 16 CFR Part 310 et seq.,
prohibits certain telemarketing sales practices. Specifically, the

TSR requires telemarketers to call only between 8:00 a.m. and 9 p.m.
local time and requires them to disclosure truthfully, promptly, and
clearly and conspicuously, the (1) identity of the
seller/telemarketer; (2) that the purpose of the call is to sell goods
or services; and, (3) the nature of the goods and services.  (16 CFR §
310.4).

The federal Telephone Consumer Protection Act of 1991 (TCPA), among
its Provisions, restricts the use of automatic dialing systems and
prerecorded or artificial messages. (47 U.S.C.  § 227). One of its
implementing rules, 47 CFR § 64.  200, prohibits any telemarketer from
using an artificial or prerecorded voice to deliver a message without
the prior express consent of the called party.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 STATEMENT IN SUPPORT :

As part of its statutory mission and duties, the Consumer Protection
Board (CPB) is responsible for enforcing the Do-Not-Call (DNC) law.
Since the law became effective in April 200 I, it bas become one of
the most popular consumer laws enacted in New York State. D N C is the
most common subject of complaint received by the CPB's Consumer

Assistance Unit.  n the first two quarters of2008, the total number of
DNC related complaints or inquiries totaled 52,425.

By further defining "telemarketing sales call" in the DNC statute to
include any outbound telephone calling technology that delivers a
prerecorded unsolicited telemarketing sales call message either to a
customer or to their voicemail or answering machine service, the CPB
seeks to make New York State law consistent with the TSR and the TCPA.
To save companies time and resources, many are turning to automatic
prerecorded calling as opposed to live person-to-person calling.

This bill clarifies that prerecorded unsolicited telemarketing sales
calls are subject to the same enforcement provisions as "live" calls,
as they are just as onerous and burdensome to New Yorkers who do not
want to receive unsolicited calls. Further, it is important to limit
the time of day that a telemarketer may call a consumer. The CPB
enforcement staff has received many complaints relating to disruptive
late night and early morning telemarketing calls. While the federal
law contains this prohibition, the current State law does not. In
addition, by requiring telemarketers to provide consumers with its
name, the purpose of the call, and the identity and cost of the goods
or services being offered, consumers can better determine the nature
of the call and the company that is calling, thereby assisting in
enforcement by the Agency.

Many unscrupulous companies are victimizing consumers by pretending to
be telemarketers in order to gain valuable and private information
from New Yorkers. New York State is sixth per capita in identity theft
complaints in the nation.  Last year, as a result of fraud, New York
consumers reported paying $46,103,842. Criminals are becoming more
savvy in perpetrating crimes relating to personal identity and this
amendment is but one more way to thwart their efforts.

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act takes effect immediately.

2009-S3763 (ACTIVE) - Bill Text download pdf

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

                                  3763

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 31, 2009
                               ___________

Introduced  by  Sen.  ADAMS  --  (at  request of the Consumer Protection
  Board) -- 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 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;
  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;

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

S. 3763                             2

  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-
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

S. 3763                             3

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.

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