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

                                  4482

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2011
                               ___________

Introduced  by M. of A. LANCMAN -- read once and referred to the Commit-
  tee on Consumer Affairs and Protection

AN ACT to amend the business corporation law and  the  general  business
  law, in relation to enacting the "unsolicited text message prohibition
  act"

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

  Section 1. Short title. This act shall be known and may  be  cited  as
the "unsolicited text message prohibition act".
  S  2. The business corporation law is amended by adding a  new section
521 to read as follows:
S 521. APPLICABILITY OF  THE  GENERAL  BUSINESS  LAW TO BUSINESS  CORPO-
         RATIONS THAT MAINTAIN DATA.
  EVERY  BUSINESS CORPORATION ORGANIZED  UNDER  THIS  CHAPTER  AND EVERY
FOREIGN CORPORATION (INCLUDING EVERY FOREIGN PROFESSIONAL SERVICE CORPO-
RATION)  QUALIFIED TO DO BUSINESS IN THIS STATE PURSUANT TO THIS CHAPTER
IS SUBJECT TO SECTION THREE HUNDRED NINETY-D  OF  THE  GENERAL  BUSINESS
LAW.
  S 3. The general business law is amended by adding a new section 390-d
to read as follows:
  S  390-D. UNSOLICITED TEXT MESSAGES.  1.  EXCEPT AS PROVIDED IN SUBDI-
VISION TWO OF THIS SECTION, NO PERSON OR ENTITY CONDUCTING  BUSINESS  IN
THIS  STATE  SHALL  TRANSMIT  OR  CAUSE TO BE TRANSMITTED A TEXT MESSAGE
ADVERTISEMENT TO A CELLULAR  TELEPHONE  OR  PAGER  EQUIPPED  WITH  SHORT
MESSAGE  CAPABILITY  OR ANY SIMILAR CAPABILITY ALLOWING THE TRANSMISSION
OF TEXT MESSAGES. A TEXT MESSAGE ADVERTISEMENT IS A MESSAGE, THE PRINCI-
PAL PURPOSE OF WHICH IS TO PROMOTE THE SALE OF GOODS OR SERVICES TO  THE
RECIPIENT,  CONSISTING  OF  ADVERTISING  MATERIAL  FOR  THE LEASE, SALE,
RENTAL, GIFT OFFER, OR OTHER DISPOSITION OF ANY REALTY, GOODS, SERVICES,
OR EXTENSION OF CREDIT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04139-02-1

              

A. 4482                             2

  2. THIS SECTION SHALL NOT APPLY TO TEXT MESSAGES  TRANSMITTED  AT  THE
DIRECTION  OF  A  PERSON  OR ENTITY OFFERING CELLULAR TELEPHONE OR PAGER
SERVICE, OR BY A BUSINESS OR AFFILIATES OF THAT BUSINESS,  THAT  HAS  AN
EXISTING  RELATIONSHIP  WITH  THE SUBSCRIBER, BUT ONLY IF THE SUBSCRIBER
HAS PROVIDED CONSENT TO THE PERSON OR ENTITY OFFERING CELLULAR TELEPHONE
OR  PAGER SERVICE OR BUSINESS WITH WHICH HE OR SHE HAS THAT RELATIONSHIP
TO RECEIVE TEXT MESSAGES FROM THAT BUSINESS OR AFFILIATES OF THAT  BUSI-
NESS.  "AFFILIATE" MEANS ANY COMPANY THAT CONTROLS, IS CONTROLLED BY, OR
IS  UNDER  COMMON  CONTROL  WITH,  ANOTHER COMPANY. A SPECIFIC, SEPARATE
CONSENT MUST BE GIVEN FOR EACH INDIVIDUAL PERSON OR ENTITY, BUSINESS, OR
AFFILIATE.
  3. 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  VIOLATION;  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, AND DIRECT RESTITUTION.  WHENEVER THE COURT SHALL
DETERMINE THAT  A  VIOLATION  OF  A  SUBDIVISION  OF  THIS  SECTION  HAS
OCCURRED,  THE  COURT  MAY  IMPOSE  A CIVIL PENALTY OF NOT MORE THAN TWO
THOUSAND DOLLARS PER CALL, UP TO A TOTAL OF NOT MORE THAN  TWENTY  THOU-
SAND  DOLLARS, FOR CALLS PLACED IN VIOLATION OF SUCH SUBDIVISIONS WITHIN
A CONTINUOUS SEVENTY-TWO HOUR 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.
  4. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY  GENERAL
PURSUANT  TO THIS SECTION, ANY PERSON WHO HAS RECEIVED A TEXT MESSAGE IN
VIOLATION OF SUBDIVISION ONE OF THIS SECTION MAY BRING AN ACTION IN  HIS
OR  HER  OWN  NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE, AN ACTION TO
RECOVER HIS OR HER ACTUAL DAMAGES OR FIFTY DOLLARS, WHICHEVER IS  GREAT-
ER,  OR  BOTH SUCH ACTIONS.   THE COURT MAY, IN ITS DISCRETION, INCREASE
THE AWARD OF DAMAGES TO AN AMOUNT NOT TO EXCEED THREE TIMES  THE  ACTUAL
DAMAGES  UP  TO  ONE  THOUSAND DOLLARS, IF THE COURT FINDS THE DEFENDANT
WILLFULLY OR KNOWINGLY VIOLATED SUCH SUBDIVISION. THE  COURT  MAY  AWARD
REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S  4.  This  act shall take effect on the ninetieth day after it shall
have become a law.