S T A T E O F N E W Y O R K
________________________________________________________________________
10569--A
I N A S S E M B L Y
June 6, 2012
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Barrett,
Dinowitz, Camara, Gabryszak, Markey, Quart, P. Rivera, Simanowitz,
Simotas, Abbate, DenDekker) -- (at request of the Governor) -- read
once and referred to the Committee on Consumer Affairs and Protection
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the general business law, in relation to telemarketing;
and to repeal certain provisions of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subparagraph 5 of paragraph a of subdivision 10 of section
399-pp of the general business law is REPEALED, subparagraph 6 of para-
graph a is renumbered subparagraph 5, and a new subdivision 10-a is
added to read as follows:
10-A. THE FOLLOWING PERSONS ARE EXEMPT FROM THE FEE AND BONDING
REQUIREMENTS SET FORTH IN PARAGRAPH F OF SUBDIVISION THREE AND SUBDIVI-
SION FOUR OF THIS SECTION: A PERSON ENGAGED IN A BUSINESS OR OCCUPATION
WHICH IS LICENSED, REGISTERED, CHARTERED, CERTIFIED OR INCORPORATED WITH
OR BY ANY STATE OR FEDERAL AGENCY. PROVIDED, HOWEVER, ANY PERSON NOT
LICENSED, REGISTERED, CHARTERED, CERTIFIED OR INCORPORATED WITH ANY NEW
YORK STATE OR FEDERAL AGENCY, SHALL SUBMIT EVIDENCE TO THE SECRETARY OF
STATE, IN A FORM AND MANNER TO BE PRESCRIBED BY THE SECRETARY, OF ANY
LICENSE, REGISTRATION, CHARTER, CERTIFICATION OR INCORPORATION ISSUED BY
AN AGENCY OR GOVERNMENTAL ENTITY IN THIS OR ANY OTHER STATE.
S 2. Section 399-z of the general business law, as amended by chapter
344 of the laws of 2010, paragraphs a and b of subdivision 1 as added by
section 39, subdivision 4 as amended by section 40 and subdivisions 6, 7
and 8 as amended by section 41 of part A of chapter 62 of the laws of
2011, 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:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12139-10-2
A. 10569--A 2
a. "Department" shall mean the department of state.
b. "Secretary" shall mean the secretary of state.
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;
f. "Negative option feature" means, in an offer or agreement to sell
or provide any goods or services, a provision under which the customer's
silence or failure to take an affirmative action to reject such goods or
services or to cancel the agreement is interpreted by the seller as
acceptance of the offer.
g. "Person" means any natural person, association, partnership, firm,
corporation and its affiliates or subsidiaries or other business entity;
h. "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;
[.] i. "Telemarketing" means any plan, program or campaign [which]
THAT is conducted to induce payment or the exchange of any other consid-
eration for any goods or services [by use of one or more telephones and
which] THAT involves more than one telephone call by a telemarketer in
which the customer is located within the state at the time of the call.
Telemarketing does not include the solicitation of sales through media
other than by telephone calls AND DOES NOT INCLUDE CALLS INTENDED TO
IMPLEMENT OR COMPLETE A TRANSACTION TO WHICH THE CUSTOMER HAS PREVIOUSLY
CONSENTED;
j. "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] A CUSTOMER'S
voicemail or answering machine service for the purpose of inducing
payment or the exchange of any other consideration for any goods or
services;
k. "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] BY the
customer [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.
2. No telemarketer or seller shall engage in telemarketing at any time
other than between 8:00 A.M. and 9:00 P.M. [local time] AT THE LOCATION
OF THE CUSTOMER unless the [consumer] CUSTOMER has given his or her
express consent to the call at a different time[, and]. TELEMARKETERS
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)] A. the telemarketer's name and the person on whose behalf the
solicitation is being made, if other than the telemarketer;
A. 10569--A 3
[(ii)] B. the purpose of the telephone call; and
[(iii)] C. the identity of the goods or services for which a fee will
be charged.
3. Prior to the purchase of any good or service, telemarketers shall
disclose to the customer the cost of the goods or services that are the
subject of the call and if the offer includes a negative option feature,
all material terms and conditions of the negative option feature,
including, but not limited to the fact that the customer's account will
be charged unless the customer takes an affirmative action to avoid the
charges, the dates the charges will be submitted for payment, and the
specific steps the customer must take to avoid the charge.
4. a. The department 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 department 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 telemarketing sales calls registry in a printed hard copy format
and in any other format as prescribed by the department.
b. The department 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 department is further authorized to
take whatever administrative 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.
5. No telemarketer or seller may make or cause to be made any unsolic-
ited telemarketing sales call to any customer when that customer's tele-
phone number has been on the national "do-not-call" registry, estab-
lished by the federal trade commission, for a period of thirty-one days
prior to the date the call is made, pursuant to 16 [CFR] C.F.R. Section
310.4(b)(1)(iii)(B).
6. NO TELEMARKETER OR SELLER SHALL INITIATE ANY TELEMARKETING SALES
CALL BY MEANS OF A TECHNOLOGY THAT DELIVERS A PRE-RECORDED MESSAGE,
UNLESS THE TELEMARKETER OR SELLER HAS OBTAINED FROM THE CUSTOMER AN
EXPRESS AGREEMENT, IN WRITING THAT:
A. THE TELEMARKETER OR SELLER OBTAINED ONLY AFTER A CLEAR AND CONSPIC-
UOUS DISCLOSURE THAT THE PURPOSE OF THE AGREEMENT IS TO AUTHORIZE THE
SELLER TO MAKE TELEMARKETING SALES CALLS TO SUCH CUSTOMER;
B. THE TELEMARKETER OR SELLER OBTAINED WITHOUT REQUIRING, DIRECTLY OR
INDIRECTLY, THAT THE AGREEMENT BE EXECUTED AS A CONDITION OF PURCHASING
ANY GOOD OR SERVICE;
C. EVIDENCES THE WILLINGNESS OF THE CUSTOMER TO RECEIVE TELEMARKETING
SALES CALLS BY OR MADE ON BEHALF OF A SPECIFIC SELLER; AND,
D. INCLUDES SUCH CUSTOMER'S TELEPHONE NUMBER AND SIGNATURE.
7. IN THE CASE OF ANY TELEMARKETING SALES CALL DELIVERED BY MEANS OF A
TECHNOLOGY THAT DELIVERS A PRE-RECORDED MESSAGE THAT COULD BE RECEIVED
BY A CUSTOMER WHO CAN USE AN AUTOMATED INTERACTIVE VOICE AND/OR KEYPRESS
ACTIVATED OPT-OUT MECHANISM TO ASSERT A DO-NOT-CALL REQUEST, SUCH CALL
SHALL INCLUDE A MECHANISM THAT ALLOWS THE CUSTOMER TO AUTOMATICALLY ADD
THE NUMBER CALLED TO THE SELLER'S ENTITY SPECIFIC DO-NOT-CALL LIST, AND
WHICH MECHANISM, ONCE INVOKED, IMMEDIATELY ENDS THE CALL.
A. 10569--A 4
8. IN THE CASE OF ANY TELEMARKETING SALES CALL DELIVERED BY MEANS OF A
TECHNOLOGY THAT DELIVERS A PRE-RECORDED MESSAGE THAT COULD BE ANSWERED
BY AN ANSWERING MACHINE OR VOICEMAIL SERVICE, THAT THE CALL INCLUDE A
TOLL-FREE NUMBER THAT MUST CONNECT THE CUSTOMER DIRECTLY TO AN AUTOMATED
INTERACTIVE VOICE OR KEYPRESS ACTIVATED OPT-OUT MECHANISM THAT ALLOWS
THE CONSUMER TO AUTOMATICALLY ADD THE NUMBER CALLED TO THE SELLER'S
ENTITY SPECIFIC DO-NOT-CALL LIST, AND WHICH MECHANISM, ONCE INVOKED,
IMMEDIATELY ENDS THE CALL.
9. TELEMARKETERS AND SELLERS SHALL KEEP FOR A PERIOD OF TWENTY-FOUR
MONTHS FROM THE DATE THE RECORD IS CREATED RECORDS RELATING TO ITS TELE-
MARKETING ACTIVITIES.
10. a. The department 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.
[7.] 11. When the department has reason to believe a telemarketer has
engaged in repeated unlawful acts in violation of this section, or when
a notice of hearing has been issued pursuant to subdivision [eight]
TWELVE of this section, the department may request in writing the
production of relevant documents and records as part of its investi-
gation. If the person upon whom such request was made fails to produce
the documents or records within thirty days after the date of the
request, the department may issue and serve subpoenas to compel the
production of such documents and records. If any person shall refuse to
comply with a subpoena issued under this section, the department may
petition a court of competent jurisdiction to enforce the subpoena and
such sanctions as the court may direct.
[8.] 12. a. Where it is determined after hearing that any person has
violated one or more provisions of this section, the secretary, 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.
[9.] 13. 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 THE PERSON CAN DEMONSTRATE THAT, AS PART OF THE
PERSON'S ROUTINE BUSINESS PRACTICE AT THE TIME OF AN ALLEGED VIOLATION,
IT has established, implemented and updated written policies and proce-
dures related to the requirements of this section prior to the date any
telemarketing call is made;
b. the person has trained his or her personnel in the requirements of
this section; and
c. the person maintains AND CAN PRODUCE records demonstrating compli-
ance with paragraphs a and b of this subdivision and the requirements of
this section.
A. 10569--A 5
[10.] 14. The [board] DEPARTMENT shall prescribe rules and regulations
to administer this section.
15. SEVERABILITY. IF ANY CLAUSE, SENTENCE, PARAGRAPH OR PART OF THIS
SECTION SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE
INVALID, SUCH JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVALIDATE THE
REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO THE CLAUSE,
SENTENCE, PARAGRAPH OR PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY
IN WHICH SUCH JUDGMENT SHALL HAVE BEEN RENDERED.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law.