Senate Bill S2063

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

                                  2063

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 18, 2011
                               ___________

Introduced  by  Sen.  KRUGER -- 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 and the state finance  law,  in
  relation to enacting the "do not offer statewide registry 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 "do not offer statewide registry act".
  S  2. The general business law is amended by adding a new section 399-
ff to read as follows:
  S 399-FF. DIRECT MAIL MARKETING SOLICITATIONS; ESTABLISHMENT OF DO NOT
OFFER STATEWIDE REGISTRY. 1. AS USED  IN  THIS  SECTION,  THE  FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  A. "BOARD" SHALL MEAN THE STATE CONSUMER PROTECTION BOARD.
  B.  "CUSTOMER" SHALL MEAN ANY NATURAL PERSON WHO IS A RESIDENT OF THIS
STATE AND WHO IS OR MAY BE REQUIRED TO PAY FOR OR TO EXCHANGE  CONSIDER-
ATION FOR GOODS AND SERVICES OFFERED THROUGH DIRECT MAIL MARKETING.
  C.  "DIRECT  MAIL  MARKETER"  SHALL MEAN ANY PERSON WHO, FOR FINANCIAL
PROFIT OR COMMERCIAL PURPOSES IN CONNECTION WITH DIRECT MAIL  MARKETING,
MAILS SOLICITATIONS FOR THE SALE OF GOODS OR SERVICES TO A CUSTOMER WHEN
THE  CUSTOMER  IS  IN  THIS STATE OR ANY PERSON WHO DIRECTLY CONTROLS OR
SUPERVISES THE CONDUCT OF A DIRECT MAIL MARKETER. FOR  THE  PURPOSES  OF
THIS  SECTION,  "COMMERCIAL  PURPOSES"  SHALL MEAN THE SALE OR OFFER FOR
SALE OF GOODS OR SERVICES.  DIRECT MAIL MARKETER SHALL INCLUDE, BUT  NOT
BE LIMITED TO A CREDIT CARD COMPANY WHICH ENGAGES IN THE ISSUANCE OF ANY
CREDIT  CARD,  CREDIT PLATE, CHARGE PLATE, COURTESY CARD, OR OTHER IDEN-
TIFICATION CARD OR DEVICE WHICH MAY BE USED TO OBTAIN A CASH ADVANCE  OR
A  LOAN  OR  CREDIT  OR TO PURCHASE OR LEASE PROPERTY OR SERVICES ON THE
CREDIT OF THE ISSUER OR OF THE HOLDER; AND SHALL  NOT  INCLUDE  A  DEBIT
CARD  ISSUED BY A BANK FOR THE TRANSFER, DEPOSIT AND WITHDRAWAL OF FUNDS
TO AND FROM A CONSUMER'S BANK ACCOUNT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06466-01-1
              

S. 2063                             2

  D. "DIRECT MAIL MARKETING"  SHALL  MEAN  ANY  MAILING  WHICH  CONTAINS
SOLICITATIONS  FOR  THE  SALE  OF GOODS OR SERVICES AND IS DIRECTED TO A
CUSTOMER AT THEIR RESIDENCE WITHIN THIS STATE BY PERSONAL DELIVERY TO  A
CUSTOMER AT HIS OR HER RESIDENCE.
  E.  "DIRECTOR" SHALL MEAN THE EXECUTIVE DIRECTOR OF THE STATE CONSUMER
PROTECTION BOARD.
  F. "DOING BUSINESS IN THIS STATE" SHALL MEAN MAILING OR CAUSING TO  BE
MAILED  ANY  DIRECT MAIL MARKETING SOLICITATION DELIVERED TO A RESIDENCE
BY MEANS OF PERSONAL DELIVERY (I) FROM A LOCATION IN THIS STATE; OR (II)
FROM A LOCATION OUTSIDE OF THIS STATE  TO  CONSUMERS  RESIDING  IN  THIS
STATE.
  G.  "GOODS  AND SERVICES" SHALL MEAN ANY GOODS AND SERVICES, AND SHALL
INCLUDE ANY REAL PROPERTY OR ANY TANGIBLE PERSONAL PROPERTY OR  SERVICES
OF ANY KIND.
  H.  "PERSON"  SHALL MEAN ANY NATURAL PERSON, ASSOCIATION, PARTNERSHIP,
FIRM, LIMITED LIABILITY  COMPANY,  CORPORATION  AND  ITS  AFFILIATES  OR
SUBSIDIARIES OR OTHER BUSINESS ENTITY.
  I.  "UNSOLICITED  DIRECT  MAIL  MARKETING"  SHALL MEAN ANY DIRECT MAIL
MARKETING MAILING OTHER THAN A MAILING:
  (I) IN RESPONSE TO AN EXPRESS WRITTEN OR VERBAL REQUEST OF THE CUSTOM-
ER; OR
  (II) IN CONNECTION WITH AN ESTABLISHED  BUSINESS  RELATIONSHIP,  WHICH
HAS NOT BEEN TERMINATED BY EITHER PARTY; OR
  (III)  TO  AN EXISTING CUSTOMER, UNLESS SUCH CUSTOMER HAS EXPRESSED TO
THE DIRECT MAIL MARKETER THAT SUCH CUSTOMER NO LONGER WISHES TO  RECEIVE
ANY MORE DIRECT MARKETING MAIL FROM THAT MARKETER.
  2.  THE  BOARD  SHALL ESTABLISH AND MAINTAIN A "DO NOT OFFER STATEWIDE
REGISTRY" WHICH SHALL CONTAIN A LIST OF CUSTOMERS WHO  DO  NOT  WISH  TO
RECEIVE UNSOLICITED DIRECT MAIL MARKETING. THE BOARD MAY CONTRACT WITH A
PRIVATE VENDOR TO ESTABLISH AND MAINTAIN SUCH REGISTRY.
  3.  NO DIRECT MAIL MARKETER SHALL MAIL OR CAUSE TO BE MAILED ANY UNSO-
LICITED DIRECT MARKETING MAIL TO ANY  CUSTOMER  MORE  THAN  THIRTY  DAYS
AFTER  THE CUSTOMER'S NAME AND ADDRESS APPEARS ON THE THEN CURRENT QUAR-
TERLY DO NOT OFFER STATEWIDE REGISTRY MADE AVAILABLE BY THE BOARD PURSU-
ANT TO SUBDIVISION TWO OF THIS SECTION.
  4. THE BOARD SHALL PROVIDE NOTICE TO CUSTOMERS OF THE ESTABLISHMENT OF
THE "DO NOT OFFER STATEWIDE REGISTRY." ANY CUSTOMER  WHO  WISHES  TO  BE
INCLUDED  IN SUCH REGISTRY SHALL NOTIFY THE BOARD BY CALLING A TOLL-FREE
NUMBER PROVIDED BY THE BOARD, OR IN ANY OTHER SUCH MANNER  AND  AT  SUCH
TIMES  AS THE BOARD MAY PRESCRIBE WHICH MAY INCLUDE NOTIFICATION VIA THE
INTERNET. A CUSTOMER ON SUCH REGISTRY SHALL BE DELETED FROM SUCH  REGIS-
TRY  UPON  THE  CUSTOMER'S  WRITTEN REQUEST. THE BOARD SHALL UPDATE SUCH
REGISTRY NOT LESS THAN QUARTERLY AND SHALL MAKE SUCH REGISTRY  AVAILABLE
TO DIRECT MAIL MARKETERS FOR SUCH FEE AS THE BOARD SHALL PRESCRIBE.
  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 ONE THOUSAND DOLLARS FOR EACH VIOLATION.
  B. EVERY 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:

S. 2063                             3

  A. THE PERSON HAS OBTAINED A COPY OF AND UPDATED,  QUARTERLY,  THE  DO
NOT OFFER STATEWIDE REGISTRY AND HAS ESTABLISHED AND IMPLEMENTED WRITTEN
POLICIES 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 DIRECT MARKETING MAIL IS THE RESULT OF
ERROR.
  S 3. Subdivisions 2 and 3 of section 97-www of the state finance  law,
as  added  by  chapter  547  of the laws of 2000, are amended to read as
follows:
  2. Such account shall consist of all fees and  penalties  received  by
the  state  consumer  protection  board pursuant to article ten-B of the
personal property law, [section] SECTIONS  three  hundred  ninety-nine-z
AND  THREE  HUNDRED  NINETY-NINE-FF  of the general business law and any
additional monies appropriated, credited or transferred to such  account
by  the  Legislature. Any interest earned by the investment of monies in
such account shall be  added  to  such  account,  become  part  of  such
account, and be used for the purposes of such account.
  3.  Monies  in  the  account  shall be available to the state consumer
protection board for the payment of costs of producing and  distributing
educational  materials and conducting educational activities relating to
the promotion of the "[unsolicited] NO telemarketing sales [call]  CALLS
STATEWIDE  registry"  AND  THE "DO NOT OFFER STATEWIDE REGISTRY" and all
related  costs  and  expenditures  incurred  in  the  administration  of
[section]  SECTIONS  three hundred ninety-nine-z AND THREE HUNDRED NINE-
TY-NINE-FF of the general business law and article ten-B of the personal
property law.
  S 4. Separability clause. If any part or provision of this act or  the
application  thereof  to any person or circumstances be adjudged invalid
by any court of competent jurisdiction, such judgment shall be  confined
in its operation to the part, provision or application directly involved
in  the  controversy in which such judgment shall have been rendered and
shall not affect or impair the validity of the remainder of this act  or
the application thereof to other persons or circumstances.
  S  5.  This  act  shall take effect January 1, 2012; provided that any
rules and regulations necessary for the timely  implementation  of  this
act  on its effective date are authorized and directed to be promulgated
on or before such effective date.