Assembly Bill A1191A

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

                                 1191--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by M. of A. COLTON -- read once and referred to the Committee
  on  Consumer  Affairs  and  Protection  --  committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend the business corporation law and the general business
  law, in relation to  prohibiting  the  transmission  of  certain  text
  messages to cellular telephones or pagers

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

  Section 1. 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 2. 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.
              

                                                           LBD04181-03-3

A. 1191--A                          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 TEXT MESSAGE, UP TO A TOTAL OF NOT MORE THAN TWENTY
THOUSAND DOLLARS, FOR TEXT MESSAGES PLACED IN VIOLATION OF SUCH SUBDIVI-
SIONS 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 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.