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SECTION 399-Z
Telemarketing; establishment of no telemarketing sales calls statewide registry; authorization of the transfer of telephone numbers on th...
General Business (GBS) CHAPTER 20, ARTICLE 26
§ 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 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;

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
telemarketing sales calls or electronic messaging texts to a customer
when the customer is in this state or any person who directly controls
or supervises the conduct of a telemarketer. 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 or
electronic messaging text 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 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
consideration 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
customer; 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
telephone subscriber to have the telephone number, and, where available,
name of the calling party transmitted contemporaneously with the
telephone call, and displayed on a device in or connected to the
subscriber's telephone; and

n. "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
information:

a. the telemarketer's name and the person on whose behalf the
solicitation 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,
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 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
establish, 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 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve
as the New York state no telemarketing 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 customers 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
unsolicited telemarketing sales call to any customer when that
customer's telephone number has been on the national "do-not-call"
registry, established 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 that:

a. the telemarketer or seller obtained only after a clear and
conspicuous 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. 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
seller'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
electronic 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
telemarketing activities.

12. a. The department shall provide notice to customers of the
establishment of the national "do-not-call" registry. Any customer who
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
directories.

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 fourteen 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
jurisdiction to enforce the subpoena and such sanctions as the court may
direct.

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
subdivision 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:

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
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
compliance with paragraphs a and b of this subdivision and the
requirements of this section.

16. The department shall prescribe rules and regulations to administer
this section.

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.