Assembly Bill A4663

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

                                  4663

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 4, 2011
                               ___________

Introduced  by  M.  of  A.  J. MILLER  --  read once and referred to the
  Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in  relation  to  the  use  of
  automatic telephone answering devices

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

  Section 1. The general business law is amended by adding a new section
391-r to read as follows:
  S 391-R. USE OF AUTOMATIC  TELEPHONE  ANSWERING  DEVICES.  1.    DEFI-
NITIONS.  AS  USED  IN  THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANINGS:
  (A) "AUTOMATIC TELEPHONE ANSWERING DEVICE" MEANS ANY AUTOMATIC  EQUIP-
MENT  USED  TO  ANSWER  A  TELEPHONE BY MEANS OTHER THAN THE ACTION OF A
HUMAN BEING.
  (B) "OPERATOR" MEANS ANY NON-RESIDENTIAL USER OF  AN  AUTOMATIC  TELE-
PHONE  ANSWERING  DEVICE,  AND  INCLUDES  ALL  BUSINESS, COMMERCIAL, AND
PROFESSIONAL ENTITIES, NONPROFIT ENTITIES, THE STATE, AND ALL  POLITICAL
SUBDIVISIONS  OF  THE STATE. THE TERM OPERATOR ALSO INCLUDES ANY PERSON,
FIRM, CORPORATION, OR OTHER LEGAL ENTITY NOT PHYSICALLY PRESENT  IN  THE
STATE  BUT DOING BUSINESS IN THE STATE SO AS TO BE SUBJECT TO THE JURIS-
DICTION OF THE STATE AS PROVIDED IN SUBDIVISION  (A)  OF  SECTION  THREE
HUNDRED TWO OF THE CIVIL PRACTICE LAW AND RULES.
  2.  NO  OPERATOR  SHALL EMPLOY OR USE AN AUTOMATIC TELEPHONE ANSWERING
DEVICE IN A MANNER INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.
  3. EVERY SUCH DEVICE SHALL, IMMEDIATELY  UPON  ANSWERING  A  TELEPHONE
CALL,  ANNOUNCE:  (A)  THAT  THE  CALL IS BEING ANSWERED BY AN AUTOMATIC
DEVICE, (B) WHETHER OR NOT THE CALLER CAN BE CONNECTED TO A HUMAN  BEING
VIA  THE  INSTANT  CONNECTION,  AND IF SO, HOW, AND (C) WHEN, IF EVER, A
HUMAN BEING IS AVAILABLE TO TAKE THE CALLER'S CALL, IF A HUMAN BEING  IS
NOT THEN AVAILABLE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08196-01-1

              

A. 4663                             2

  4.  WHEN  CONNECTION  TO  A  HUMAN BEING VIA THE INSTANT CONNECTION IS
AVAILABLE, SUCH CONNECTION MUST BE MADE WITHIN  SEVEN  MINUTES  OF  SUCH
DEVICE'S  FIRST  ANSWERING THE CALL, AND THE DEVICE MUST SO ANNOUNCE. IF
SUCH DEVICE IS UNABLE TO COMPLETE SUCH A CONNECTION AT THE END  OF  SUCH
SEVEN  MINUTE  PERIOD,  THE DEVICE MUST ACCEPT A MESSAGE FROM THE CALLER
ALLOWING THE CALLER TO GIVE HIS OR HER NAME AND A  TELEPHONE  NUMBER  AT
WHICH  HE OR SHE MAY BE REACHED. IN SUCH EVENT, A HUMAN BEING MUST PLACE
A CALL TO THE CALLER, AT THE OPERATOR'S EXPENSE, WITHIN ONE HOUR OF SUCH
FAILURE TO CONNECT AFTER THE SEVEN MINUTE PERIOD. IF THIS  CALL  IS  NOT
COMPLETED, THE EFFORT TO COMPLETE SUCH CALL MUST BE REPEATED THREE TIMES
BEFORE IT MAY BE ABANDONED.
  5.  IF  ANY OPERATOR SHALL CAUSE TO BE LISTED IN A TELEPHONE DIRECTORY
OR SHALL OTHERWISE PUBLISH OR ADVERTISE A TELEPHONE NUMBER CONNECTED  TO
AN  AUTOMATIC  TELEPHONE ANSWERING DEVICE, WHICH DEVICE DOES NOT CONNECT
TO A HUMAN BEING, SUCH LISTING, PUBLICATION, OR  ADVERTISEMENT  MUST  SO
STATE.
  6. 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 VIOLATIONS; 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.  WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION
OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE A  CIVIL  PENALTY  OF
ONE  HUNDRED DOLLARS FOR A FIRST VIOLATION AND OF UP TO ONE THOUSAND FOR
A SECOND  OR  SUBSEQUENT  VIOLATION  WITHIN  A  ONE  YEAR  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.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.