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

                                  2566

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 19, 2011
                               ___________

Introduced by M. of A. COLTON, PHEFFER -- Multi-Sponsored by -- M. of A.
  CONTE, McDONOUGH, McENENY, WEISENBERG -- read once and referred to the
  Committee 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04139-01-1
              

A. 2566                             2

SERVICE,  OR  BY  A BUSINESS OR AFFILIATES OF THAT BUSINESS, THAT HAS AN
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.