S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5397
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 11, 2019
                                ___________
 
 Introduced  by  M.  of  A. CYMBROWITZ, COLTON, DINOWITZ, GALEF, GUNTHER,
   JAFFEE -- read once and referred to the Committee on Consumer  Affairs
   and Protection
 
 AN  ACT to amend the general business law and 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, paragraph k of subdivision 1 as amended
 and  paragraphs  l and m of subdivision 1 as added by chapter 484 of the
 laws of 2016, subdivision 2 as amended by chapter 239  of  the  laws  of
 2017  and  subdivision 2-a as amended by chapter 18 of the laws of 2017,
 is amended to read as follows:
   § 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;

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

                                                            LBD09381-01-9

 A. 5397                             2
 
   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
 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. "Caller identification information" means information provided by a
 caller identification service regarding the telephone number and name of
 the person calling; and
   m. "Caller identification service" means a service that allows a tele-
 phone subscriber to have the telephone  number,  and,  where  available,
 name  of  the calling party transmitted contemporaneously with the tele-
 phone call, and displayed on a device in or connected to  the  subscrib-
 er's telephone.
   N.  "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;
   O. "TELEFACSIMILE" MEANS EVERY PROCESS IN WHICH ELECTRONIC SIGNALS ARE
 TRANSMITTED BY TELEPHONE LINES FOR CONVERSION INTO WRITTEN TEXT;
   P.  "TELEFACSIMILE ADVERTISER" MEANS ANY PERSON, CORPORATION, PARTNER-
 SHIP OR ASSOCIATION WHO INITIATES UNSOLICITED  TELEFACSIMILE  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

 A. 5397                             3
 
 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;
   c. the identity of the goods or services  for  which  a  fee  will  be
 charged; and
   d. whether the call is being recorded.
   2-a.  It shall be unlawful for any telemarketer or seller to knowingly
 cause any caller identification service to transmit misleading,  inaccu-
 rate, or false caller identification information, provided that it shall
 not be a violation to substitute (for the name and phone number used in,
 or  billed  for,  making  the  call) the name or telephone number of the
 person or seller on behalf of which a telemarketing call is placed.
   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,
 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

 A. 5397                             4
 
 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
 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

 A. 5397                             5
 
 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
 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.
   § 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:
   § 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.
   §  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.

 A. 5397                             6
 
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.