S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4157

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2009
                               ___________

Introduced  by  M.  of  A.  CYMBROWITZ, COLTON, DINOWITZ, ALESSI, GALEF,
  EDDINGTON -- Multi-Sponsored by -- M. of A.  GUNTHER,  JOHN,  KOON  --
  read  once  and  referred  to  the  Committee  on Consumer Affairs and
  Protection

AN ACT to amend the general business law, the public service law and the
  state finance law, in relation to  allowing  individuals  to  register
  their  telefacsimile  telephone  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 124 of the laws of 2003, paragraph j of subdivision 1 as amended
by chapter 214 of the laws of 2005, subdivision 3 as amended by  chapter
69 of the laws of 2007, paragraph a of subdivision 6 as amended by chap-
ter  417 of the laws of 2004 and paragraph a of subdivision 7 as amended
by chapter 263 of the laws of 2006, is amended to read as follows:
  S 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. "Board" shall mean the consumer protection board;
  b. "Director" means the executive director of the consumer  protection
board;
  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.
                                                           LBD04863-02-9

A. 4157                             2

  f. "Person" means any natural person, association, partnership,  firm,
corporation and its affiliates or subsidiaries or other business entity;
  g.  "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;
  h. "Telemarketing" means  any  plan,  program  or  campaign  which  is
conducted  to  induce payment or the exchange of any other consideration
for any goods or services by use of one or  more  telephones  and  which
involves  more  than  one  telephone call by a telemarketer in which the
customer is located within the state at the time of the call.   Telemar-
keting  does  not  include the solicitation of sales through media other
than by telephone calls;
  i. "Telemarketing sales call" means a telephone call made by  a  tele-
marketer  to  a  customer  for  the  purpose  of inducing payment or the
exchange of any other consideration for any goods or services;
  j. "Unsolicited telemarketing  sales  call"  means  any  telemarketing
sales call other than a call made:
  (i) in response to an express written or verbal request of the custom-
er called; 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; or
  (iii)  to an existing customer, unless such customer has stated to the
telemarketer that such customer no longer wishes to receive the telemar-
keting sales calls of such telemarketer[.];
  K. "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;
  L. "TELEFACSIMILE" MEANS EVERY PROCESS IN WHICH ELECTRONIC SIGNALS ARE
TRANSMITTED BY TELEPHONE LINES FOR CONVERSION INTO WRITTEN TEXT;
  M. "TELEFACSIMILE ADVERTISER" MEANS ANY PERSON, CORPORATION,  PARTNER-
SHIP  OR  ASSOCIATION WHO INITIATES UNSOLICITED TELEFACSIMILE ADVERTISE-
MENTS.
  2. a. The board is authorized to establish, manage, and maintain a  no
telemarketing sales calls AND TELEFACSIMILE ADVERTISING statewide regis-
try  which  shall contain a list of customers who do not wish to receive
unsolicited telemarketing sales calls OR TELEFACSIMILE ADVERTISING.  The
board may contract with a private vendor to establish, manage and  main-
tain  such registry, provided the private vendor has maintained national
no telemarketing sales calls OR TELEFACSIMILE ADVERTISING 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
board.  ANY TYPE OF COPY FORMAT MAINTAINED FOR TELEMARKETING SALES CALLS
SHALL BE MAINTAINED FOR TELEFACSIMILE ADVERTISING.
  b. The board 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  board  is  further

A. 4157                             3

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  tele-
marketing  sales  calls AND TELEFACSIMILE ADVERTISING statewide registry
to the federal trade commission, for inclusion on the national  "do-not-
call" registry.
  3. 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 CFR 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
THE THEN CURRENT QUARTERLY NO TELEMARKETING SALES CALLS AND  TELEFACSIM-
ILE  ADVERTISING REGISTRY MADE AVAILABLE BY THE BOARD PURSUANT TO SUBDI-
VISION TWO OF THIS SECTION.
  4. a. The board 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 directo-
ries.
  C. ANY COMPANY IN THIS 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.
  5. The  board shall prescribe rules and regulations to administer this
section.
  6. a. Where it  is  determined  after  hearing  that  any  person  has
violated  one  or  more provisions of this section, the director, 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.
  7. 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 has
established and implemented written policies and procedures  related  to
the requirements of this section;
  b.  the person has trained his or her personnel in the requirements of
this section;
  c. the person maintains records demonstrating  compliance  with  para-
graphs a and b of this subdivision and the requirements of this section;
and
  d.  any subsequent unsolicited telemarketing sales call OR UNSOLICITED
TELEFACSIMILE ADVERTISEMENT is the result of error.

A. 4157                             4

  S 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:
  S 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.
  S  3. Section 97-www of the state finance law, as added by chapter 547
of the laws of 2000, is amended to read as follows:
  S 97-www. [1.] Consumer protection account.  1. There is hereby estab-
lished in the joint custody of the state comptroller and the commission-
er of taxation and finance an account within the  miscellaneous  special
revenue fund to be known as the "consumer protection account."
  2.  Such  account  shall consist of all fees and penalties received by
the state consumer protection board pursuant to  article  ten-B  of  the
personal  property law[,] AND section three hundred ninety-nine-z of the
general business law, and any additional monies  appropriated,  credited
or  transferred  to  such  account by the [Legislature] LEGISLATURE. Any
interest earned by the investment of monies in  such  account  shall  be
added  to such account, become part of such account, and be used for the
purposes of such account.
  3. Monies in the account shall be  available  to  the  state  consumer
protection  board for the payment of costs of producing and distributing
educational materials and conducting educational activities relating  to
the  promotion of the "[unsolicited] NO telemarketing sales [call] CALLS
AND TELEFACSIMILE ADVERTISING STATEWIDE registry" and all related  costs
and expenditures incurred in the administration of section three hundred
ninety-nine-z  of  the  general  business  law  and article ten-B of the
personal property law.
  4. Monies [in the account] shall be paid out of  the  account  on  the
audit  and  warrant  of  the  state comptroller on vouchers certified or
approved by the EXECUTIVE DIRECTOR  OF  THE  state  consumer  protection
board  or [any officer or employee designated by the executive director]
BY HIS OR HER DULY DESIGNATED REPRESENTATIVE, IN THE  MANNER  PRESCRIBED
BY LAW.
  S  4.  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.
  S 5. This act shall take effect on the one hundred eightieth day after
it shall have become a law, provided, however, that effective immediate-
ly, the addition, amendment and/or repeal of any  rules  or  regulations
necessary  for  the  implementation  of  section  one of this act on its
effective date is authorized and directed to be made and completed on or
before such effective date.