S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4187
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2019
                                ___________
 
 Introduced  by  M.  of  A.  MONTESANO,  GOODELL,  FINCH -- read once and
   referred to the Committee on Consumer Affairs and Protection
 
 AN ACT to amend the general business law, in relation to the  regulation
   of unsolicited commercial text messages to wireless telephones
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new article
 30-B to read as follows:
                                ARTICLE 30-B
                   UNSOLICITED COMMERCIAL TEXT MESSAGING
 SECTION 645. DEFINITIONS.
         646. PROHIBITED ACTS.
         647. CIVIL REMEDIES FOR NONCOMPLIANCE.
         648. APPLICABILITY.
   § 645. DEFINITIONS. FOR THE PURPOSES OF THIS  ARTICLE,  THE  FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "COMMERCIAL TEXT MESSAGING" SHALL MEAN A TYPED MESSAGE TRANSMITTED
 TO A WIRELESS TELEPHONE NUMBER, REGARDLESS OF WHETHER  SUCH  MESSAGE  IS
 VIEWED,  STORED  FOR  RETRIEVAL  AT  ANOTHER TIME, PRINTED ONTO PAPER OR
 OTHER SIMILAR MATERIAL, OR FILTERED OR SCREENED, THAT:
   (A) CONTAINS AN ADVERTISEMENT FOR THE SALE OF A  PRODUCT,  SERVICE  OR
 REAL ESTATE;
   (B) CONTAINS A SOLICITATION FOR THE USE OF A TELEPHONE NUMBER, THE USE
 OF  WHICH  CONNECTS  THE USER TO A PERSON OR SERVICE THAT ADVERTISES THE
 SALE OF OR SELLS A PRODUCT, SERVICE OR REAL ESTATE; OR
   (C) PROMOTES THE USE OF OR CONTAINS A LIST OF  ONE  OR  MORE  INTERNET
 SITES  THAT  CONTAIN  AN ADVERTISEMENT REFERRED TO IN PARAGRAPH (A) OR A
 SOLICITATION REFERRED TO IN PARAGRAPH (B) OF THIS SUBDIVISION;
   2. "INITIATE THE TRANSMISSION" SHALL MEAN TO TRANSMIT A  TEXT  MESSAGE
 TO  A  WIRELESS  TELEPHONE  NUMBER,  BUT SUCH TERM SHALL NOT INCLUDE ANY
 INTERVENING INTERACTIVE COMPUTER SERVICE WHOSE FACILITIES MAY HAVE  BEEN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08273-01-9

 A. 4187                             2
 
 USED  TO RELAY, HANDLE, OR OTHERWISE RETRANSMIT THE TEXT MESSAGE, UNLESS
 THE INTERVENING INTERACTIVE SERVICE  PROVIDER  KNOWINGLY  AND  WILLFULLY
 RETRANSMITS ANY TEXT MESSAGE IN VIOLATION OF THIS ARTICLE;
   3.  "PREEXISTING BUSINESS RELATIONSHIP" SHALL MEAN MUTUAL BUSINESS-RE-
 LATED COMMUNICATIONS THAT OCCURRED BETWEEN THE SENDER OF THE  COMMERCIAL
 TEXT MESSAGE AND THE RECIPIENT PRIOR TO THE TRANSMISSION OF SUCH COMMER-
 CIAL TEXT MESSAGE;
   4.  "TRANSMIT OR CAUSE TO BE TRANSMITTED" SHALL MEAN THE ACTION BY THE
 ORIGINAL OR SUBSEQUENT SENDER OF THE COMMERCIAL TEXT MESSAGE, BUT  SHALL
 NEITHER  INCLUDE  NOR  REFER  TO  THE  ACTION  OF ANY WIRELESS TELEPHONE
 SERVICE PROVIDER TO THE EXTENT THE SERVICE PROVIDER MERELY CARRIES  THAT
 TRANSMISSION OVER ITS NETWORK.
   § 646. PROHIBITED ACTS. NO PERSON SHALL TRANSMIT OR CAUSE TO BE TRANS-
 MITTED  AN  UNSOLICITED  COMMERCIAL TEXT MESSAGE TO A WIRELESS TELEPHONE
 NUMBER THAT THE PERSON KNOWS OR HAS REASON TO KNOW IS HELD BY A RESIDENT
 OF THE STATE.
   § 647. CIVIL REMEDIES FOR NONCOMPLIANCE. 1. UPON THE COMMISSION  OF  A
 "PROHIBITED  ACT"  AS  DEFINED  IN SECTION SIX HUNDRED FORTY-SIX OF THIS
 ARTICLE AN APPLICATION MAY BE MADE BY THE PUBLIC SERVICE COMMISSION TO A
 COURT HAVING JURISDICTION TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE
 RESPONDENT OF NOT LESS THAN  FIVE  DAYS,  TO  ENJOIN  AND  RESTRAIN  THE
 CONTINUANCE OF SUCH VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF
 THE  COURT  THAT  THE  RESPONDENT  HAS  COMMITTED  A "PROHIBITED ACT" AS
 DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS ARTICLE THE COURT SHALL
 ENJOIN AND RESTRAIN ANY FURTHER VIOLATION WITHOUT REQUIRING  PROOF  THAT
 ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.
   2.  IN  A PROCEEDING BROUGHT UNDER THIS SECTION, THE COURT MAY MAKE AN
 ALLOWANCE TO THE PUBLIC SERVICE COMMISSION PURSUANT TO PARAGRAPH TWO  OF
 SUBDIVISION  (A)  OF  SECTION  EIGHT THOUSAND THREE HUNDRED THREE OF THE
 CIVIL PRACTICE LAW AND RULES.
   3. WHENEVER THE COURT SHALL DETERMINE THAT A RESPONDENT HAS  COMMITTED
 A  "PROHIBITED  ACT" AS DEFINED IN SECTION SIX HUNDRED FORTY-SIX OF THIS
 ARTICLE, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT  MORE  THAN  FIVE
 HUNDRED  DOLLARS  FOR  EACH  UNSOLICITED  TEXT  MESSAGE TRANSMITTED TO A
 RECIPIENT.
   § 648. APPLICABILITY. 1. A WIRELESS TELEPHONE SERVICE  PROVIDER  SHALL
 NOT  BE  HELD  LIABLE  FOR  ANY PENALTY IN ANY ACTION BROUGHT UNDER THIS
 ARTICLE, UNLESS THE WIRELESS SERVICE PROVIDER  KNOWINGLY  AND  WILLFULLY
 TRANSMITS TEXT MESSAGES IN VIOLATION OF THIS ARTICLE.
   2.  A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
 ANY PENALTY IN ANY ACTION  BROUGHT  UNDER  THIS  ARTICLE  FOR  RELAYING,
 HANDLING,  OR  OTHERWISE  RETRANSMITTING TEXT MESSAGES WHEN THE WIRELESS
 TELEPHONE SERVICE PROVIDER IS ACTING  AS  AN  INTERMEDIARY  BETWEEN  THE
 PERSON WHO INITIATED THE TRANSMISSION AND THE INTENDED RECIPIENT.
   3.  A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE FOR
 ANY PENALTY IN ANY ACTION BROUGHT UNDER  THIS  ARTICLE  FOR  FAILING  TO
 BLOCK THE RECEIPT OR TRANSMISSION THROUGH ITS SERVICE OR PROPERTY OF ANY
 TEXT  MESSAGE  WHICH  IT  REASONABLY  BELIEVES  IS  OR  WILL  BE SENT IN
 VIOLATION OF THIS ARTICLE.
   4. A WIRELESS TELEPHONE SERVICE PROVIDER SHALL NOT BE HELD LIABLE  FOR
 ANY ACTION VOLUNTARILY TAKEN IN GOOD FAITH TO BLOCK THE RECEIPT OR TRAN-
 SMISSION  THROUGH ITS SERVICE OR PROPERTY OF ANY COMMERCIAL TEXT MESSAGE
 WHICH IT REASONABLY BELIEVES IS OR WILL BE SENT  IN  VIOLATION  OF  THIS
 ARTICLE.
   5.  NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
 UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-

 A. 4187                             3
 
 IENT WITH WHOM THE INITIATOR HAS A PREEXISTING BUSINESS RELATIONSHIP  OR
 PERSONAL RELATIONSHIP.
   6.  NO PERSON MAY BE HELD LIABLE FOR ANY PENALTY IN ANY ACTION BROUGHT
 UNDER THIS ARTICLE FOR TRANSMITTING COMMERCIAL TEXT MESSAGES TO A RECIP-
 IENT WHEN THE RECIPIENT HAS INVITED OR EXPRESSLY  PERMITTED  THE  TRANS-
 MISSION OF SUCH TEXT MESSAGE.
   7.  FOR PURPOSES OF THIS ARTICLE, A PERSON HAS REASON TO KNOW THAT THE
 INTENDED RECIPIENT OF A COMMERCIAL TEXT MESSAGE IS  A  RESIDENT  OF  THE
 STATE  IF  THAT  INFORMATION IS AVAILABLE, UPON REQUEST, FROM THE PUBLIC
 SERVICE COMMISSION.
   8. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED  SO  AS  TO  NULLIFY  OR
 IMPAIR ANY OTHER RIGHTS OR REMEDIES THAT MAY BE AVAILABLE BY COMMON LAW,
 BY STATUTE, OR OTHERWISE.
   9.  NOTHING  IN  THIS  ARTICLE  SHALL BE CONSTRUED SO AS TO NULLIFY OR
 IMPAIR ANY TRANSACTION, REPORTING, DISCLOSURE OR OTHER ACTIVITY  PERMIT-
 TED  UNDER  THE  PROVISIONS OF TITLE V OF THE FEDERAL GRAMM-LEACH-BLILEY
 ACT (PUB. L.  NO. 106-102), THE FEDERAL FAIR CREDIT  REPORTING  ACT  (15
 U.S.C. 1681 ET SEQ.), AND OTHER APPLICABLE PROVISIONS OF FEDERAL LAW.
   §  2. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law.