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

                                  4173

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 30, 2009
                               ___________

Introduced  by  M.  of  A.  COOK, JOHN -- Multi-Sponsored by -- M. of A.
  AUBRY, GIANARIS, HOOPER, V. LOPEZ, McENENY, REILLY, TOWNS,  WRIGHT  --
  read  once  and referred to the Committee on Corporations, Authorities
  and Commissions

AN ACT to amend the public  service  law,  in  relation  to  prohibiting
  certain telephone solicitation calls

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

  Section 1. The public service law is amended by adding a  new  section
92-g to read as follows:
  S  92-G. TELEPHONE SOLICITATION CALLS PROHIBITED DURING CERTAIN HOURS.
1. AS USED IN THIS SECTION THE TERM: (A) "TELEPHONE  SOLICITATION  CALL"
SHALL MEAN A CALL OR MESSAGE TO A RESIDENTIAL TELEPHONE CUSTOMER FOR THE
PURPOSE OF SOLICITING A PURCHASE, LEASE, OR RENTAL OF, OR INVESTMENT IN,
OR  CONTRACT  OR EXTENSION OF CREDIT FOR GOODS, SERVICES OR PROPERTY, OR
FOR THE PURPOSE OF OBTAINING INFORMATION FOR SUCH  PURPOSES.  SUCH  TERM
SHALL  NOT  INCLUDE  A  CALL MADE TO A RESIDENTIAL TELEPHONE CUSTOMER IN
RESPONSE TO AN INQUIRY OR INVITATION, BASED ON AN  ESTABLISHED  BUSINESS
RELATIONSHIP, OR AFTER RECEIPT OF EXPRESS PERMISSION.
  (B)  "PERSON"  SHALL MEAN ANY INDIVIDUAL, FIRM, ORGANIZATION, PARTNER-
SHIP, ASSOCIATION, CORPORATION OR OTHER  BUSINESS  ENTITY.    SUCH  TERM
SHALL NOT INCLUDE ANY NON-PROFIT ORGANIZATION.
  2.  NO  PERSON  SHALL  PLACE A TELEPHONE SOLICITATION CALL BETWEEN THE
HOURS OF EIGHT P.M. AND EIGHT A.M.
  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  VIOLATIONS;  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01254-01-9
              

A. 4173                             2

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 THIS SECTION HAS OCCURRED, THE COURT MAY
IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE HUNDRED DOLLARS PER CALL, UP
TO A TOTAL OF NOT MORE THAN TWENTY THOUSAND DOLLARS, FOR CALLS PLACED IN
VIOLATION OF THIS SECTION 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 TELEPHONE CALL
IN VIOLATION 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  FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER, 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 OR ONE
THOUSAND  FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER, IF THE COURT FINDS
THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS  SECTION.  THE  COURT
MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.