S T A T E O F N E W Y O R K
________________________________________________________________________
2067
2017-2018 Regular Sessions
I N A S S E M B L Y
January 17, 2017
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Introduced by M. of A. MONTESANO, GOODELL, McLAUGHLIN, FINCH -- Multi-
Sponsored by -- M. of A. OAKS -- read once and referred to the Commit-
tee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the regulation
of unsolicited commercial text messages to wireless telephones
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 article
30-B to read as follows:
ARTICLE 30-B
UNSOLICITED COMMERCIAL TEXT MESSAGING
SECTION 645. DEFINITIONS.
646. PROHIBITED ACTS.
647. CIVIL REMEDIES FOR NONCOMPLIANCE.
648. APPLICABILITY.
§ 645. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. "COMMERCIAL TEXT MESSAGING" SHALL MEAN A TYPED MESSAGE TRANSMITTED
TO A WIRELESS TELEPHONE NUMBER, REGARDLESS OF WHETHER SUCH MESSAGE IS
VIEWED, STORED FOR RETRIEVAL AT ANOTHER TIME, PRINTED ONTO PAPER OR
OTHER SIMILAR MATERIAL, OR FILTERED OR SCREENED, THAT:
(A) CONTAINS AN ADVERTISEMENT FOR THE SALE OF A PRODUCT, SERVICE OR
REAL ESTATE;
(B) CONTAINS A SOLICITATION FOR THE USE OF A TELEPHONE NUMBER, THE USE
OF WHICH CONNECTS THE USER TO A PERSON OR SERVICE THAT ADVERTISES THE
SALE OF OR SELLS A PRODUCT, SERVICE OR REAL ESTATE; OR
(C) PROMOTES THE USE OF OR CONTAINS A LIST OF ONE OR MORE INTERNET
SITES THAT CONTAIN AN ADVERTISEMENT REFERRED TO IN PARAGRAPH (A) OR A
SOLICITATION REFERRED TO IN PARAGRAPH (B) OF THIS SUBDIVISION;
2. "INITIATE THE TRANSMISSION" SHALL MEAN TO TRANSMIT A TEXT MESSAGE
TO A WIRELESS TELEPHONE NUMBER, BUT SUCH TERM SHALL NOT INCLUDE ANY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06063-01-7
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INTERVENING INTERACTIVE COMPUTER SERVICE WHOSE FACILITIES MAY HAVE BEEN
USED TO RELAY, HANDLE, OR OTHERWISE RETRANSMIT THE TEXT MESSAGE, UNLESS
THE INTERVENING INTERACTIVE SERVICE PROVIDER KNOWINGLY AND WILLFULLY
RETRANSMITS ANY TEXT MESSAGE IN VIOLATION OF THIS ARTICLE;
3. "PREEXISTING BUSINESS RELATIONSHIP" SHALL MEAN MUTUAL BUSINESS-RE-
LATED COMMUNICATIONS THAT OCCURRED BETWEEN THE SENDER OF THE COMMERCIAL
TEXT MESSAGE AND THE RECIPIENT PRIOR TO THE TRANSMISSION OF SUCH COMMER-
CIAL TEXT MESSAGE;
4. "TRANSMIT OR CAUSE TO BE TRANSMITTED" SHALL MEAN THE ACTION BY THE
ORIGINAL OR SUBSEQUENT SENDER OF THE COMMERCIAL TEXT MESSAGE, BUT SHALL
NEITHER INCLUDE NOR REFER TO THE ACTION OF ANY WIRELESS TELEPHONE
SERVICE PROVIDER TO THE EXTENT THE SERVICE PROVIDER MERELY CARRIES THAT
TRANSMISSION OVER ITS NETWORK.
§ 646. PROHIBITED ACTS. NO PERSON SHALL TRANSMIT OR CAUSE TO BE TRANS-
MITTED AN UNSOLICITED COMMERCIAL TEXT MESSAGE TO A WIRELESS TELEPHONE
NUMBER THAT THE PERSON KNOWS OR HAS REASON TO KNOW IS HELD BY A RESIDENT
OF THE STATE.
§ 647. CIVIL REMEDIES FOR NONCOMPLIANCE. 1. UPON THE COMMISSION OF A
"PROHIBITED ACT" AS DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS
ARTICLE AN APPLICATION MAY BE MADE BY THE PUBLIC SERVICE COMMISSION TO A
COURT HAVING JURISDICTION TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE
RESPONDENT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE
CONTINUANCE OF SUCH VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF
THE COURT THAT THE RESPONDENT HAS COMMITTED A "PROHIBITED ACT" AS
DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS ARTICLE THE COURT SHALL
ENJOIN AND RESTRAIN ANY FURTHER VIOLATION WITHOUT REQUIRING PROOF THAT
ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
2. IN A PROCEEDING BROUGHT UNDER THIS SECTION, THE COURT MAY MAKE AN
ALLOWANCE TO THE PUBLIC SERVICE COMMISSION PURSUANT TO PARAGRAPH TWO OF
SUBDIVISION (A) OF SECTION EIGHT THOUSAND THREE HUNDRED THREE OF THE
CIVIL PRACTICE LAW AND RULES.
3. WHENEVER THE COURT SHALL DETERMINE THAT A RESPONDENT HAS COMMITTED
A "PROHIBITED ACT" AS DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS
ARTICLE, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN FIVE
HUNDRED DOLLARS FOR EACH UNSOLICITED TEXT MESSAGE TRANSMITTED TO A
RECIPIENT.
§ 648. APPLICABILITY. 1. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL
NOT BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT UNDER THIS
ARTICLE, UNLESS THE WIRELESS SERVICE PROVIDER KNOWINGLY AND WILLFULLY
TRANSMITS TEXT MESSAGES IN VIOLATION OF THIS ARTICLE.
2. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
ANY PENALTY IN ANY ACTION BROUGHT UNDER THIS ARTICLE FOR RELAYING,
HANDLING, OR OTHERWISE RETRANSMITTING TEXT MESSAGES WHEN THE WIRELESS
TELEPHONE SERVICE PROVIDER IS ACTING AS AN INTERMEDIARY BETWEEN THE
PERSON WHO INITIATED THE TRANSMISSION AND THE INTENDED RECIPIENT.
3. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
ANY PENALTY IN ANY ACTION BROUGHT UNDER THIS ARTICLE FOR FAILING TO
BLOCK THE RECEIPT OR TRANSMISSION THROUGH ITS SERVICE OR PROPERTY OF ANY
TEXT MESSAGE WHICH IT REASONABLY BELIEVES IS OR WILL BE SENT IN
VIOLATION OF THIS ARTICLE.
4. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
ANY ACTION VOLUNTARILY TAKEN IN GOOD FAITH TO BLOCK THE RECEIPT OR TRAN-
SMISSION THROUGH ITS SERVICE OR PROPERTY OF ANY COMMERCIAL TEXT MESSAGE
WHICH IT REASONABLY BELIEVES IS OR WILL BE SENT IN VIOLATION OF THIS
ARTICLE.
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5. NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-
IENT WITH WHOM THE INITIATOR HAS A PREEXISTING BUSINESS RELATIONSHIP OR
PERSONAL RELATIONSHIP.
6. NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-
IENT WHEN THE RECIPIENT HAS INVITED OR EXPRESSLY PERMITTED THE TRANS-
MISSION OF SUCH TEXT MESSAGE.
7. FOR PURPOSES OF THIS ARTICLE, A PERSON HAS REASON TO KNOW THAT THE
INTENDED RECIPIENT OF A COMMERCIAL TEXT MESSAGE IS A RESIDENT OF THE
STATE IF THAT INFORMATION IS AVAILABLE, UPON REQUEST, FROM THE PUBLIC
SERVICE COMMISSION.
8. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED SO AS TO NULLIFY OR
IMPAIR ANY OTHER RIGHTS OR REMEDIES THAT MAY BE AVAILABLE BY COMMON LAW,
BY STATUTE, OR OTHERWISE.
9. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED SO AS TO NULLIFY OR
IMPAIR ANY TRANSACTION, REPORTING, DISCLOSURE OR OTHER ACTIVITY PERMIT-
TED UNDER THE PROVISIONS OF TITLE V OF THE FEDERAL GRAMM-LEACH-BLILEY
ACT (PUB. L. NO. 106-102), THE FEDERAL FAIR CREDIT REPORTING ACT (15
U.S.C. 1681 ET SEQ.), AND OTHER APPLICABLE PROVISIONS OF FEDERAL LAW.
§ 2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.