S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7490
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                May 7, 2019
                                ___________
 
 Introduced  by  M.  of  A. DenDEKKER -- (at request of the Department of
   State) -- read once and referred to the Committee on Consumer  Affairs
   and Protection
 
 AN ACT to amend the general business law, in relation to telemarketing
 
   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 statewide 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] MEANS the department of state.
   b. "Secretary" [shall mean] MEANS 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.
              

                                                            LBD09696-01-9

 A. 7490                             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  enti-
 ty[;].
   h.  "Telemarketer"  means  any  person  who,  for  financial profit or
 commercial purposes in connection with telemarketing, (I) makes telemar-
 keting sales calls OR ELECTRONIC MESSAGING TEXTS to a customer when  the
 customer is in this state [or any person who], (II) directly controls or
 supervises  the  conduct of a telemarketer, OR (III) INTENTIONALLY AIDS,
 CONTRACTS WITH OR REQUESTS A TELEMARKETER TO  ENGAGE  IN  TELEMARKETING.
 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 OR  MORE  tele-
 phone  [call]  CALLS  OR ELECTRONIC MESSAGING TEXTS by a telemarketer in
 which the customer is located within the state at the time of the  call.
 TELEMARKETING  ALSO INCLUDES THE ACCEPTANCE OR COLLECTION OF INFORMATION
 OBTAINED FROM TELEPHONE CALLS OR ELECTRONIC  MESSAGING  TEXTS  WITH  THE
 INTENT  OF  PROVIDING  IT  TO  A THIRD PARTY WHO ACCEPTS OR COLLECTS THE
 INFORMATION TO ENGAGE IN TELEMARKETING. Telemarketing does  not  include
 the solicitation of sales through media other than by telephone calls OR
 ELECTRONIC  MESSAGING  TEXTS  and  does  not include calls OR ELECTRONIC
 MESSAGING TEXTS intended to implement or complete a transaction to which
 the customer has previously consented[;].
   j. "Telemarketing sales call" means a  telephone  call  OR  ELECTRONIC
 MESSAGING TEXT, made DIRECTLY OR INDIRECTLY by a telemarketer, 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,  IN  WHICH  SUCH TELEPHONE CALL OR ELECTRONIC MESSAGING TEXT IS
 for the purpose of inducing payment or the exchange of any other consid-
 eration 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  THAT  IS displayed on a device in or connected to the
 subscriber's telephone.
   N. "AREA CODE" MEANS THE FIRST THREE DIGITS OF THE TEN-DIGIT TELEPHONE
 NUMBER.
   O. "ENTITY SPECIFIC DO-NOT-CALL LIST"  MEANS  THE  LIST  OF  TELEPHONE
 NUMBERS PROVIDED DIRECTLY TO THE TELEMARKETER BY THE OWNERS OF THE TELE-
 PHONE  NUMBERS FOR THE PURPOSE OF BEING REMOVED FROM ANY FUTURE TELEMAR-
 KETING CALLS.

 A. 7490                             3
 
   P. "SHORT-DURATION VOLUME CALLER" MEANS ANY TELEMARKETER THAT  INTENDS
 TO  SURPASS OR HAS SURPASSED FIVE THOUSAND DIALED TELEPHONE CALLS DURING
 ANY GIVEN DAY WHERE IT  IS  REASONABLY  ANTICIPATED  THAT  OVER  SEVENTY
 PERCENT OF TELEPHONE CALLS PLACED MAY GO UNANSWERED OR THE CALL DURATION
 OF  OVER  SEVENTY  PERCENT OF CALLS PLACED WILL BE LESS THAN THIRTY-FIVE
 SECONDS.
   Q. "AUTOMATIC NUMBER IDENTIFICATION" MEANS ANY DATA MESSAGE,  PROTOCOL
 OR  PART THEREOF WHICH COMMUNICATES THE TELEPHONE NUMBER TO BE DISPLAYED
 ON THE CALLER IDENTIFICATION OF THE TELEPHONE CALL RECIPIENT.  AUTOMATIC
 NUMBER  IDENTIFICATION  INCLUDES A CALLING PARTY NUMBER, INITIAL ADDRESS
 MESSAGE, AND CALLING LINE IDENTIFICATION.
   R. "NEW YORK STATE AUTOMATIC NUMBER IDENTIFICATION" MEANS ANY AUTOMAT-
 IC NUMBER IDENTIFICATION WITH AN AREA CODE DESIGNATED BY THE NORTH AMER-
 ICAN NUMBERING PLAN TO COVER LOCATIONS IN NEW YORK STATE.
   S. "NORTH AMERICAN NUMBERING PLAN" HAS THE MEANING ASCRIBED TO  IT  BY
 FEDERAL  COMMUNICATIONS  COMMISSION  REGULATIONS,  DEFINED  IN 47 C.F.R.
 SECTION 52.5(D).
   T. "PUBLIC SWITCHED TELEPHONE NETWORK" MEANS  ALL  TELEPHONES,  MOBILE
 TELEPHONES  AND DEVICES ASSIGNED TELEPHONE NUMBERS FROM THE NORTH AMERI-
 CAN NUMBERING PLAN.
   U. "TELEPHONE DIALING SERVICES" MEANS ANY SERVICE PROVIDING  TELEPHONE
 CALL  DISTRIBUTION OR TELEPHONE CALL DIALING SERVICES, INCLUDING BUT NOT
 LIMITED TO OFF-PREMISE, ON-PREMISE, GATEWAY AND INTERNET-BASED MEANS  OF
 ORIGINATING  TELEPHONE CALLS TO THE DEVICES ON THE PUBLIC SWITCHED TELE-
 PHONE NETWORK.
   V. "DOWNSTREAM CARRIER" MEANS ANY PERSON PROVIDING TRANSPORTING  TELE-
 PHONE  CALL  TRAFFIC  ACCEPTED FROM ANOTHER CARRIER, SUCH AS AN UPSTREAM
 CARRIER.
   W. "UPSTREAM CARRIER" MEANS ANY  PERSON  TRANSPORTING  TELEPHONE  CALL
 TRAFFIC TO ANOTHER CARRIER, SUCH AS A DOWNSTREAM CARRIER.
   X. "AUTOMATIC TELEPHONE DIALING SYSTEM" MEANS ANY EQUIPMENT OR SERVICE
 WHICH  HAS  THE  CAPABILITY  TO STORE OR PRODUCE TELEPHONE NUMBERS TO BE
 CALLED, AND TO DIAL SUCH NUMBERS.
   Y. "AUTO-DIALED CALL" MEANS ANY TELEPHONE CALL INITIATED BY  AN  AUTO-
 MATIC TELEPHONE DIALING SYSTEM.
   Z.  "ELECTRONIC MESSAGING TEXT" MEANS REAL-TIME OR NEAR REAL-TIME NON-
 VOICE MESSAGES IN TEXT FORM OVER COMMUNICATIONS NETWORKS,  AND  INCLUDES
 THE  TRANSMISSION OF WRITING, SIGNS, SIGNALS, PICTURES AND SOUNDS OF ALL
 KINDS BY AID OF WIRE, CABLE OR OTHER LIKE CONNECTION BETWEEN THE  POINTS
 OF ORIGIN AND RECEPTION OF SUCH TRANSMISSION.
   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;
   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

 A. 7490                             4

 not be a violation to substitute (for the  name  and  [phone]  TELEPHONE
 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 statewide registry which shall contain  a
 list  of  customers who do not wish to receive unsolicited telemarketing
 sales calls. The department may contract with a private vendor to estab-
 lish, manage and maintain such registry, provided the private vendor has
 maintained national no telemarketing sales  calls  registries  for  more
 than  two  years, and the contract requires the vendor to provide the no
 telemarketing sales calls registry in a printed hard copy format and  in
 any other format as prescribed by the department.
   b.  The  department  is  authorized to have the national "do-not-call"
 registry established,  managed  and  maintained  by  the  federal  trade
 commission  pursuant  to  15  U.S.C.  6151,  AND REFERENCED BY 16 C.F.R.
 Section 310.4 (b) (1) (iii) (B), TO serve as the New York state no tele-
 marketing sales calls statewide registry provided for by  this  section.
 The  department  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 custom-
 ers registered on the no telemarketing sales calls statewide registry to
 the federal trade commission, for inclusion  on  the  national  "do-not-
 call" registry.
   5. No telemarketer or seller may make or cause to be made any unsolic-
 ited telemarketing sales call to any customer when that customer's tele-
 phone  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).
   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,  USING PLAIN LANGUAGE AND PRINTED IN TYPE NO LESS THAN
 TWELVE-POINT TYPE, 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[.];
   E. IS DISPLAYED BEFORE ANY MECHANISM OFFERED TO THE CUSTOMER TO VERIFY
 OR ACKNOWLEDGE CONSENT; AND
   F. CONTAINS THE FOLLOWING LANGUAGE:

 A. 7490                             5
 
   (I)  "THIS EXPRESS AGREEMENT APPLIES ONLY BETWEEN THE CUSTOMER AND THE
 SPECIFIC ENTITY OFFERING THE AGREEMENT, AND ANY NAMED PARTNER OR  AFFIL-
 IATE ENTITY."
   (II)  "BY  CLICKING OR OTHERWISE ACKNOWLEDGING AGREEMENT, I UNDERSTAND
 THAT I CONSENT TO AND MAY RECEIVE TELEMARKETING SALES CALLS  EVEN  IF  I
 HAVE PREVIOUSLY ENTERED MY NUMBER ON THE NATIONAL 'DO-NOT-CALL' REGISTRY
 MAINTAINED BY THE FEDERAL TRADE COMMISSION."
   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.
   11.  A.  ANY  PROVIDER OF TELEPHONE DIALING SERVICES TO SHORT-DURATION
 VOLUME CALLERS OR PERSONS INTENDING TO ENGAGE IN  SHORT-DURATION  VOLUME
 CALLS  SHALL REGISTER ALL NEW YORK STATE AUTOMATED NUMBER IDENTIFICATION
 NUMBERS WITH THE DEPARTMENT PRIOR TO ALLOWING THEIR USE  IN  THE  ORIGI-
 NATION  OF  OUTBOUND TELEPHONE CALLS.   REGISTRATION OF AUTOMATED NUMBER
 IDENTIFICATION NUMBERS SHALL  INCLUDE  THE  TELEMARKETER'S  (I)  BILLING
 TELEPHONE  NUMBER,  (II) BILLING ADDRESS, (III) BILLING COMPANY AND (IV)
 BILLING CONTACT.  FAILURE TO COMPLY WITH THIS SUBDIVISION SHALL  SUBJECT
 THE  TELEMARKETER, TELEPHONE DIALING SERVICE AND ALL DOWNSTREAM CARRIERS
 TO JOINT LIABILITY FOR VIOLATIONS OF THIS SECTION.  DOWNSTREAM  CARRIERS
 SHALL  BE  JOINTLY  LIABLE  WITH UPSTREAM CARRIERS FROM WHOM THEY ACCEPT
 CALL TRAFFIC.
   B. NO PERSON MAY INITIATE A TELEPHONE CALL ON BEHALF OF A  SHORT-DURA-
 TION  VOLUME  CALLER  DISPLAYING A NEW YORK STATE AUTOMATED NUMBER IDEN-
 TIFICATION THAT HAS NOT BEEN REGISTERED FOR USE WITH THE  DEPARTMENT  OR
 ASSIGNED  BY THE NORTH AMERICAN NUMBERING PLAN TO THAT PERSON OR ENTITY.
 TELEPHONE DIALING SERVICES ARE PROHIBITED FROM DISPLAYING NEW YORK STATE
 AUTOMATED NUMBER  IDENTIFICATION  INFORMATION  WHICH  HAS  NEITHER  BEEN
 REGISTERED  FOR  USE  BY  THE  CALLER NOR ASSIGNED BY THE NORTH AMERICAN
 NUMBERING PLAN DIRECTLY TO THE SHORT-DURATION VOLUME CALLER.
   C. ANY TELEPHONE CALL FROM A SHORT-DURATION VOLUME  CALLER  CONTAINING
 AN  AUTOMATED  NUMBER  IDENTIFICATION  THAT  IS  NOT REGISTERED WITH THE

 A. 7490                             6
 
 DEPARTMENT SHALL DISPLAY THE BILLING  TELEPHONE  NUMBER  OF  THE  PERSON
 INITIATING THE CALL.
   12. NO TELEMARKETER OR SELLER MAY INITIATE ANY TELEPHONE CALL USING AN
 AUTOMATIC  TELEPHONE  DIALING  SYSTEM  OR  AN  ARTIFICIAL OR PRERECORDED
 VOICE, WITHOUT PRIOR EXPRESS  AND  VERIFIABLE  CONSENT,  CONTAINING  ALL
 ELEMENTS OF SUBDIVISION SIX OF THIS SECTION, FROM THE OWNER OF THE TELE-
 PHONE NUMBER RECEIVING THE CALL.
   [11.] 13. 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]
 FOURTEEN  of  this  section,  the  department may request in writing the
 production of relevant documents and records as  part  of  its  investi-
 gation.  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
 NOTWITHSTANDING  ANY OTHER PROVISIONS OF LAW, TO REQUEST A CIVIL PENALTY
 NOT TO EXCEED ONE THOUSAND DOLLARS, ACTUAL DAMAGES SUSTAINED  BY  REASON
 OF THE FAILURE TO COMPLY, and such sanctions as the court may direct.
   [12.]  14. 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 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, implemented and updated written policies and  proce-
 dures  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.] 15. The department  shall  prescribe  rules  and  regulations  to
 administer this section.
   [15.]  16. 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. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.