S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4777
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 25, 2019
                                ___________
 
 Introduced  by Sen. KAMINSKY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer Protection
 
 AN ACT to amend the general business law, in relation  to  enacting  the
   "nuisance call act"
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "nuisance call act".
   § 2. Subdivisions 9, 10, 11, 12, 13, 14 and 15 of section 399-z of the
 general  business  law,  subdivisions 9 and 15 as added and subdivisions
 10, 11, 12, 13 and 14 as amended by chapter 369 of the laws of 2012, are
 amended to read as follows:
   9. IN THE CASE OF ANY TELEMARKETING  SALES  CALL  MADE  BY  A  NATURAL
 PERSON,  THE TELEMARKETER OR SELLER SHALL INFORM THE CUSTOMER THAT HE OR
 SHE MAY REQUEST THAT HIS OR HER TELEPHONE NUMBER BE ADDED TO  THE  SELL-
 ER'S  ENTITY  SPECIFIC  DO-NOT-CALL LIST. IF THE CUSTOMER OPTS TO DO SO,
 THE TELEMARKETER OR SELLER SHALL IMMEDIATELY END THE CALL AND SHALL  ADD
 THE NUMBER CALLED TO SUCH LIST OR CAUSE THE NUMBER CALLED TO BE ADDED TO
 SUCH LIST.
   10. NO TELEMARKETER OR SELLER SHALL TRANSMIT, SHARE, OR OTHERWISE MAKE
 AVAILABLE  ANY CUSTOMER'S CONTACT INFORMATION, INCLUDING NAME, TELEPHONE
 NUMBER, OR EMAIL ADDRESS, WHICH HAS BEEN PROVIDED TO  SUCH  TELEMARKETER
 OR  SELLER BY SUCH CUSTOMER, TO ANY PERSON, CORPORATION, OR OTHER ENTITY
 WITHOUT THE EXPRESS AGREEMENT OF THE CONSUMER IN WRITING OR IN ELECTRON-
 IC FORMAT, UNLESS OTHERWISE REQUIRED BY LAW, OR  PURSUANT  TO  A  LAWFUL
 SUBPOENA OR COURT ORDER.
   11.  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.] 12. a. The department shall provide notice to customers  of  the
 establishment  of  the national "do-not-call" registry. Any customer who
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01119-01-9

 S. 4777                             2
 
 wishes to be included on such registry shall notify  the  federal  trade
 commission 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.] 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
 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.] 15. 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.] 16. The department shall  prescribe  rules  and  regulations  to
 administer this section.
   [15.]  17. 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.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.