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

                                  2244

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of  A.  CYMBROWITZ, COLTON, DINOWITZ, GALEF, CASTRO,
  GUNTHER, JAFFEE -- read once and referred to the Committee on Consumer
  Affairs and Protection

AN ACT to amend the general business law  the  public  service  law,  in
  relation to allowing individuals to register their telefacsimile tele-
  phone  numbers  with  the consumer protection board as part of the "do
  not call" statewide registry

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

  Section  1.  Section  399-z of the general business law, as amended by
chapter 369 of the laws of 2012, 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 AND TELEFACSIMILE ADVERTISING state-
wide registry to the national "do-not-call" registry. 1. As used in this
section, the following terms shall have the following meanings:
  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

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

                                                           LBD06236-01-3

A. 2244                             2

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  that is
conducted to induce payment or the exchange of any  other  consideration
for  any goods or services 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  to  a  customer  or  to  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 by the custom-
er; 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[.];
  L. "UNSOLICITED TELEFACSIMILE ADVERTISEMENT" MEANS  ANY  TELEFACSIMILE
MESSAGE  THAT  PROMOTES GOODS AND SERVICES FOR PURCHASE BY THE RECIPIENT
OF SUCH MESSAGE, EXCEPT WHERE THE MESSAGE IS SENT TO  A  RECIPIENT  WITH
WHICH  THE  INITIATOR  HAS  HAD  A  PREEXISTING  BUSINESS OR CONTRACTUAL
RELATIONSHIP;
  M. "TELEFACSIMILE" MEANS EVERY PROCESS IN WHICH ELECTRONIC SIGNALS ARE
TRANSMITTED BY TELEPHONE LINES FOR CONVERSION INTO WRITTEN TEXT;
  N. "TELEFACSIMILE ADVERTISER" MEANS ANY PERSON, CORPORATION,  PARTNER-
SHIP  OR  ASSOCIATION  WHO INITIATES UNSOLICITED TELEFACSIMLE ADVERTISE-
MENTS.
  2. No telemarketer or seller shall engage in telemarketing at any time
other than between 8:00 A.M. and  9:00  P.M.  at  the  location  of  the
customer unless the customer has given his or her express consent to the
call  at  a  different time. 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 informa-
tion:
  a.  the  telemarketer's name and the person on whose behalf the solic-
itation is being made, if other than the telemarketer;
  b. the purpose of the telephone call; and
  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,

A. 2244                             3

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 AND TELEFACSIMILE ADVERTISING statewide
registry which shall contain a list of customers  who  do  not  wish  to
receive unsolicited telemarketing sales calls OR TELEFACSIMILE ADVERTIS-
ING.    The  department may contract with a private vendor to establish,
manage and maintain such registry, provided the private vendor has main-
tained national no telemarketing sales calls OR TELEFACSIMILE  ADVERTIS-
ING  registries  for  more than two years, and the contract requires the
vendor to provide the no telemarketing  sales  calls  AND  TELEFACSIMILE
ADVERTISING  registry  in  a  printed  hard copy format and in any other
format as prescribed by the department.  ANY TYPE OF COPY  FORMAT  MAIN-
TAINED FOR TELEMARKETING SALES CALLS SHALL BE MAINTAINED FOR TELEFACSIM-
ILE ADVERTISING.
  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  AND  TELEFACSIMILE
ADVERTISING statewide registry provided for by this section. The depart-
ment  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 regis-
tered  on the no telemarketing sales calls AND TELEFACSIMILE ADVERTISING
statewide registry to the federal trade commission, for inclusion on the
national "do-not-call" registry.
  5. A. No telemarketer or seller may make or cause to be made any unso-
licited telemarketing sales call to any customer  when  that  customer's
telephone 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  C.F.R.  Section
310.4(b)(1)(iii)(B).
  B.  NO TELEFACSIMILE ADVERTISER MAY MAKE OR CAUSE TO BE MADE ANY UNSO-
LICITED TELEFACSIMILE ADVERTISEMENT TO ANY  CUSTOMER  MORE  THAN  THIRTY
DAYS AFTER THE CUSTOMER'S NAME AND TELEPHONE NUMBER OR NUMBERS APPEAR ON
THE  THEN CURRENT QUARTERLY NO TELEMARKETING SALES CALLS AND TELEFACSIM-
ILE ADVERTISING REGISTRY MADE AVAILABLE BY THE BOARD PURSUANT TO  SUBDI-
VISION FOUR OF THIS SECTION.
  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

A. 2244                             4

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.
  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.
  C. ANY COMPANY IN THE STATE THAT SELLS EQUIPMENT CAPABLE OF  TRANSMIT-
TING  A  TELEFACSIMILE  SHALL  INFORM ITS CUSTOMERS OF THE PROVISIONS OF
THIS SECTION BY MEANS OF POSTING A NOTICE ISSUED BY THE BOARD.
  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  twelve  of
this  section,  the  department may request in writing the production of
relevant documents and records as part  of  its  investigation.  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.
  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.
  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 OR UNSOLICITED TELEFACSIMILE ADVERTISE-
MENT 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, imple-
mented  and  updated  written  policies  and  procedures  related to the

A. 2244                             5

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.
  14. The 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 2. Section 92-d of the public service law, as amended by chapter 546
of the laws of 2000, the opening  paragraph  as  separately  amended  by
chapter 547 of the laws of 2000, is amended to read as follows:
  S 92-d. Telephone solicitations. Each local exchange telephone company
shall  inform  its customers of the provisions of sections three hundred
ninety-nine-p [and],   three hundred  ninety-nine-z  and  three  hundred
ninety-nine-pp  of  the  general  business  law and article ten-B of the
personal property law, as  such  provisions  relate  to  the  rights  of
consumers  with  respect to telemarketers, sellers, the no telemarketing
sales [call] CALLS AND TELEFACSIMILE ADVERTISING statewide registry, and
automatic dialing-announcing devices, by means of:
  1. Inserting a notice annually in the customers'  billing  statements;
and
  2. Publishing a notice in local telephone directories.
  S  3.  Separability  clause; construction. 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 remain-
der  of  this act or the application thereof to other persons or circum-
stances.
  S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law, provided, however, that effective immediate-
ly, the addition, amendment and/or repeal of any  rules  or  regulations
necessary  for  the  implementation  of  section  one of this act on its
effective date is authorized and directed to be made and completed on or
before such effective date.