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

                                  5192

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 11, 2009
                               ___________

Introduced  by M. of A. BRODSKY -- read once and referred to the Commit-
  tee on Consumer Affairs and Protection

AN ACT to amend the business corporation law and  the  general  business
  law,  in  relation  to  prohibiting  the  transmission of certain text
  messages to cellular telephones or pagers

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  business corporation law is amended by adding a  new
section 521 to read as follows:
S 521. APPLICABILITY OF  THE  GENERAL  BUSINESS  LAW TO BUSINESS  CORPO-
         RATIONS THAT MAINTAIN DATA.
  EVERY  BUSINESS CORPORATION ORGANIZED  UNDER  THIS  CHAPTER  AND EVERY
FOREIGN CORPORATION (INCLUDING EVERY FOREIGN PROFESSIONAL SERVICE CORPO-
RATION)  QUALIFIED TO DO BUSINESS IN THIS STATE PURSUANT TO THIS CHAPTER
IS SUBJECT TO SECTION THREE HUNDRED NINETY-D  OF  THE  GENERAL  BUSINESS
LAW.
  S 2. The general business law is amended by adding a new section 390-d
to read as follows:
  S  390-D. UNSOLICITED TEXT MESSAGES.  1.  EXCEPT AS PROVIDED IN SUBDI-
VISION TWO OF THIS SECTION, NO PERSON OR ENTITY CONDUCTING  BUSINESS  IN
THIS  STATE  SHALL  TRANSMIT  OR  CAUSE TO BE TRANSMITTED A TEXT MESSAGE
ADVERTISEMENT TO A CELLULAR  TELEPHONE  OR  PAGER  EQUIPPED  WITH  SHORT
MESSAGE  CAPABILITY  OR ANY SIMILAR CAPABILITY ALLOWING THE TRANSMISSION
OF TEXT MESSAGES. A TEXT MESSAGE ADVERTISEMENT IS A MESSAGE, THE PRINCI-
PAL PURPOSE OF WHICH IS TO PROMOTE THE SALE OF GOODS OR SERVICES TO  THE
RECIPIENT,  CONSISTING  OF  ADVERTISING  MATERIAL  FOR  THE LEASE, SALE,
RENTAL, GIFT OFFER, OR OTHER DISPOSITION OF ANY REALTY, GOODS, SERVICES,
OR EXTENSION OF CREDIT.
  2. THIS SECTION SHALL NOT APPLY TO TEXT MESSAGES  TRANSMITTED  AT  THE
DIRECTION  OF  A  PERSON  OR ENTITY OFFERING CELLULAR TELEPHONE OR PAGER
SERVICE, OR BY A BUSINESS OR AFFILIATES OF THAT BUSINESS,  THAT  HAS  AN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08193-01-9
              

A. 5192                             2

EXISTING  RELATIONSHIP  WITH  THE SUBSCRIBER, BUT ONLY IF THE SUBSCRIBER
HAS PROVIDED CONSENT TO THE PERSON OR ENTITY OFFERING CELLULAR TELEPHONE
OR PAGER SERVICE OR BUSINESS WITH WHICH HE OR SHE HAS THAT  RELATIONSHIP
TO  RECEIVE TEXT MESSAGES FROM THAT BUSINESS OR AFFILIATES OF THAT BUSI-
NESS.  "AFFILIATE" MEANS ANY COMPANY THAT CONTROLS, IS CONTROLLED BY, OR
IS UNDER COMMON CONTROL WITH,  ANOTHER  COMPANY.  A  SPECIFIC,  SEPARATE
CONSENT MUST BE GIVEN FOR EACH INDIVIDUAL PERSON OR ENTITY, BUSINESS, OR
AFFILIATE.
  3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY  BE  MADE  BY  THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE  AN
INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS,
TO  ENJOIN  AND  RESTRAIN  THE  CONTINUANCE OF SUCH VIOLATION; AND IF IT
SHALL APPEAR TO THE SATISFACTION OF  THE  COURT  OR  JUSTICE,  THAT  THE
DEFENDANT  HAS,  IN  FACT,  VIOLATED  THIS  SECTION AN INJUNCTION MAY BE
ISSUED BY SUCH COURT OR JUSTICE ENJOINING AND  RESTRAINING  ANY  FURTHER
VIOLATION,  WITHOUT  REQUIRING  PROOF THAT ANY PERSON HAS, IN FACT, BEEN
INJURED OR DAMAGED THEREBY.  IN ANY SUCH PROCEEDING, THE COURT MAY  MAKE
ALLOWANCES  TO  THE  ATTORNEY  GENERAL  AS  PROVIDED IN PARAGRAPH SIX OF
SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
TICE LAW AND RULES, AND DIRECT RESTITUTION.   WHENEVER THE  COURT  SHALL
DETERMINE  THAT  A  VIOLATION  OF  A  SUBDIVISION  OF  THIS  SECTION HAS
OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT  MORE  THAN  TWO
THOUSAND  DOLLARS  PER CALL, UP TO A TOTAL OF NOT MORE THAN TWENTY THOU-
SAND DOLLARS, FOR CALLS PLACED IN VIOLATION OF SUCH SUBDIVISIONS  WITHIN
A  CONTINUOUS  SEVENTY-TWO  HOUR  PERIOD.    IN CONNECTION WITH ANY SUCH
PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO  TAKE  PROOF
AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  4.  IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY GENERAL
PURSUANT TO THIS SECTION, ANY PERSON WHO HAS RECEIVED A TEXT MESSAGE  IN
VIOLATION  OF SUBDIVISION ONE OF THIS SECTION MAY BRING AN ACTION IN HIS
OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE,  AN  ACTION  TO
RECOVER  HIS OR HER ACTUAL DAMAGES OR FIFTY DOLLARS, WHICHEVER IS GREAT-
ER, OR BOTH SUCH ACTIONS.  THE COURT MAY, IN  ITS  DISCRETION,  INCREASE
THE  AWARD  OF DAMAGES TO AN AMOUNT NOT TO EXCEED THREE TIMES THE ACTUAL
DAMAGES UP TO ONE THOUSAND DOLLARS, IF THE  COURT  FINDS  THE  DEFENDANT
WILLFULLY  OR  KNOWINGLY  VIOLATED SUCH SUBDIVISION. THE COURT MAY AWARD
REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.