S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6858
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 22, 2017
                                ___________
 
 Introduced by M. of A. COLTON -- 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:
 § 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.
   § 2. The general business law is amended by adding a new section 390-d
 to read as follows:
   § 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.
              

                                                            LBD09801-01-7

 A. 6858                             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 TEXT MESSAGE, UP TO A TOTAL OF NOT MORE THAN TWENTY
 THOUSAND DOLLARS, FOR TEXT MESSAGES PLACED IN VIOLATION OF SUCH SUBDIVI-
 SIONS  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.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.