Senate Bill S6885A

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6885--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 20, 2021
                                ___________
 
 Introduced  by Sen. THOMAS -- (at request of the Department of State) --
   read twice and ordered printed, and when printed to  be  committed  to
   the  Committee  on Consumer Protection -- recommitted to the Committee
   on Consumer Protection in accordance with Senate Rule  6,  sec.  8  --
   committee  discharged,  bill amended, ordered reprinted as amended and
   recommitted to said committee
 
 AN ACT to amend the general business law, in relation  to  strengthening
   consumer  consent  rules that apply to live and robocall telemarketing
   calls
 
   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, paragraphs h, i,  j,  k,  l  and  m  of
 subdivision  1 as amended and paragraph n as added by chapter 239 of the
 laws of 2021, subdivision 2 as amended by chapter 239  of  the  laws  of
 2017,  subdivision  2-a  as  amended  by chapter 18 of the laws of 2017,
 subdivision 5-a as added by chapter 680 of the laws  of  2019,  subdivi-
 sions  9, 11, 12, 13, 14, 15, 16 and 17 as amended and subdivision 10 as
 added by chapter 572 of the laws of 2019, 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] TELEMARKETING  SALES  CALLS  MANDATES,  PROHIBI-
 TIONS,  AND  "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[;].
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09656-04-2
 S. 6885--A                          2
              

 
   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
 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 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 ONE OR more [than one] telephone
 [call] CALLS or electronic messaging [text] 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 or electronic messaging text other than:
   (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[;].
   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-
 S. 6885--A                          3
 
 phone  call,  and displayed on a device in or connected to the subscrib-
 er's telephone[; and].
   n.  "Electronic messaging text" means real-time or near real-time non-
 voice messages in text  form  SENT  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.
   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.
   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 VOICE SERVICE PROVIDING caller identification service to tran-
 smit misleading, inaccurate, 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 telemar-
 keting 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-
 S. 6885--A                          4
 
 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).
   5-a. It shall be unlawful for any telemarketer doing business in  this
 state  to  knowingly make an unsolicited telemarketing sales call to any
 person in a county, city, town or village  under  a  declared  state  of
 emergency  or disaster emergency as described in sections twenty-four or
 twenty-eight of the executive law.
   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.  NO SUCH AGREEMENT SHALL AUTHORIZE ANY
 TELEMARKETING SALES CALLS MORE THAN THIRTY DAYS AFTER EXECUTION  OF  THE
 AGREEMENT, AND THE AGREEMENT MUST PROVIDE that:
   a. the telemarketer or seller obtained only after a clear and conspic-
 uous  disclosure,  USING  PLAIN  LANGUAGE  AND  PRINTED  IN 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:
   (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."
   6-A.   NO TELEMARKETER OR SELLER MAY INITIATE ANY TELEPHONE CALL USING
 AN AUTOMATIC TELEPHONE DIALING SYSTEM OR AN ARTIFICIAL  OR  PRE-RECORDED
 VOICE,  WITHOUT  PRIOR  EXPRESS AND VERIFIABLE CONSENT FROM THE OWNER OF
 THE TELEPHONE NUMBER RECEIVING THE CALL.
   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
 S. 6885--A                          5
 
 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.  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. NO SUCH AGREEMENT SHALL AUTHORIZE A TELEMARKET-
 ER OR SELLER TO  TRANSMIT,  SHARE,  OR  OTHERWISE  MAKE  AVAILABLE  SUCH
 CONSUMER'S CONTACT INFORMATION FOR MORE THAN THIRTY DAYS AFTER EXECUTION
 OF THE AGREEMENT.
   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.
   12. 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.
   13. When the department has reason to believe a [telemarketer]  PERSON
 has  engaged  in repeated unlawful acts in violation of this section, or
 when a notice of hearing has been issued pursuant to  subdivision  four-
 teen  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] FOURTEEN 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
 TO REQUEST A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS  PER  DAY,
 ACTUAL  DAMAGES  SUSTAINED  BY REASON OF THE FAILURE TO COMPLY, AND such
 sanctions as the court may direct.
   14. a. Where it is determined after AN OPPORTUNITY FOR A 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] TWENTY-TWO 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.
   15. [A person shall not be held liable for violating this section if:
 S. 6885--A                          6

   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.
   16.] The department shall prescribe rules and regulations to  adminis-
 ter this section.
   [17.]  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 immediately.