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

                                  2899

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2011
                               ___________

Introduced  by  M.  of  A.  CYMBROWITZ, COLTON, DINOWITZ, GALEF, CASTRO,
  GUNTHER, JAFFEE -- 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 344 of the laws of 2010, 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;
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01934-02-1
              

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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 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;
  [.]  i.  "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;
  j.  "Telemarketing  sales call" means a telephone call made by a tele-
marketer or by any outbound telephone calling technology that delivers a
prerecorded message either to  a  customer  or  to  their  voicemail  or
answering  machine  service  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 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[.];
  L.  "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;
  M. "TELEFACSIMILE" MEANS EVERY PROCESS IN WHICH ELECTRONIC SIGNALS ARE
TRANSMITTED BY TELEPHONE LINES FOR CONVERSION INTO WRITTEN TEXT;
  N.  "TELEFACSIMILE ADVERTISER" MEANS ANY PERSON, CORPORATION, PARTNER-
SHIP OR ASSOCIATION WHO INITIATES  UNSOLICITED  TELEFACSIMLE  ADVERTISE-
MENTS.
  2. No telemarketer or seller shall engage in telemarketing at any time
other than between 8:00 A.M. and 9:00 P.M. local time unless the consum-
er has given his or her express consent to the call at a different time,
and  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:
  (i)  the telemarketer's name and the person on whose behalf the solic-
itation is being made, if other than the telemarketer;
  (ii) the purpose of the telephone call; and
  (iii) the identity of the goods or services for which a  fee  will  be
charged.
  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

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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 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
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.
  5. 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 FOUR OF THIS SECTION.
  6. 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 THE 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.
  7.  When the board 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 eight of  this  section,
the  board  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 board may issue and serve

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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 board may petition a court of competent jurisdiction to enforce  the
subpoena and such sanctions as the court may direct.
  8.  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.
  9. 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,  implemented  and  updated  written policies and procedures
related to the requirements of this section prior to the date any  tele-
marketing call is made;
  b.  the person has trained his or her personnel in the requirements of
this section; and
  c. the person maintains records demonstrating  compliance  with  para-
graphs a and b of this subdivision and the requirements of this section.
  10. The board shall prescribe rules and regulations to administer this
section.
  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.

A. 2899                             5

  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.