S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3539
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2021
                                ___________
 
 Introduced  by  M. of A. CYMBROWITZ, COLTON, DINOWITZ, GALEF, GUNTHER --
   read once and referred  to  the  Committee  on  Consumer  Affairs  and
   Protection
 
 AN  ACT to amend the general business law and the public service law, in
   relation to allowing individuals to register their telefacsimile tele-
   phone 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 369 of the laws of 2012, paragraph k of subdivision 1 as amended
 and  paragraphs  l and m of subdivision 1 as added by chapter 484 of the
 laws of 2016, subdivision 2 as amended by chapter 239  of  the  laws  of
 2017,  subdivision  2-a  as  amended  by chapter 18 of the laws of 2017,
 subdivision 5-a as added by chapter 680 of the laws of 2019, subdivision
 10 as added and subdivisions 9, 11, 12,  13,  14,  15,  16,  and  17  as
 amended  by  chapter  572  of  the  laws  of 2019, is amended to read as
 follows:
   § 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. "Department" shall mean the department of state.
   b. "Secretary" shall mean the secretary of state.
   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;

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

                                                            LBD07215-01-1

 A. 3539                             2
 
   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
 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  that is
 conducted to induce payment or the exchange of any  other  consideration
 for  any goods or services that involves more than one telephone call by
 a telemarketer in which the customer is located within the state at  the
 time  of  the  call.  Telemarketing does not include the solicitation of
 sales through media other than by telephone calls and does  not  include
 calls  intended  to  implement  or  complete  a transaction to which the
 customer has previously consented;
   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  to  a  customer  or  to  a customer's 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 by the custom-
 er; 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. "Caller identification information" means information provided by a
 caller identification service regarding the telephone number and name of
 the person calling; [and]
   m. "Caller identification service" means a service that allows a tele-
 phone subscriber to have the telephone  number,  and,  where  available,
 name  of  the calling party transmitted contemporaneously with the tele-
 phone call, and displayed on a device in or connected to  the  subscrib-
 er's telephone[.];
   N.  "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;
   O. "TELEFACSIMILE" MEANS EVERY PROCESS IN WHICH ELECTRONIC SIGNALS ARE
 TRANSMITTED BY TELEPHONE LINES FOR CONVERSION INTO WRITTEN TEXT; AND
   P.  "TELEFACSIMILE ADVERTISER" MEANS ANY PERSON, CORPORATION, PARTNER-
 SHIP OR ASSOCIATION WHO INITIATES UNSOLICITED  TELEFACSIMILE  ADVERTISE-
 MENTS.

 A. 3539                             3
 
   2. No telemarketer or seller shall engage in telemarketing at any time
 other  than  between  8:00  A.M.  and  9:00  P.M. at the location of the
 customer unless the customer has given his or her express consent to the
 call at a different time. Telemarketers 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 informa-
 tion:
   a. the telemarketer's name and the person on whose behalf  the  solic-
 itation is being made, if other than the telemarketer;
   b. the purpose of the telephone call;
   c.  the  identity  of  the  goods  or services for which a fee will be
 charged; and
   d. whether the call is being recorded.
   2-a. It shall be unlawful for any telemarketer or seller to  knowingly
 cause  any caller identification service to transmit misleading, inaccu-
 rate, or false caller identification information, provided that it shall
 not be a violation to substitute (for the name and phone number used in,
 or billed for, making the call) the name  or  telephone  number  of  the
 person or seller on behalf of which a telemarketing call is placed.
   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
 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 department is authorized to establish, manage, and maintain
 a no telemarketing sales calls AND TELEFACSIMILE  ADVERTISING  statewide
 registry  which  shall  contain  a  list of customers who do not wish to
 receive unsolicited telemarketing sales calls OR TELEFACSIMILE ADVERTIS-
 ING. The department may contract with a  private  vendor  to  establish,
 manage and maintain such registry, provided the private vendor has main-
 tained  national no telemarketing sales calls OR TELEFACSIMILE ADVERTIS-
 ING 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 department. ANY TYPE OF COPY FORMAT MAIN-
 TAINED FOR TELEMARKETING SALES CALLS SHALL BE MAINTAINED FOR TELEFACSIM-
 ILE ADVERTISING.
   b. The department 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 depart-
 ment 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 regis-
 tered on the no telemarketing 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

 A. 3539                             4
 
 prior  to  the  date  the  call  is  made, pursuant to 16 C.F.R. 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.
   5-a.  It shall be unlawful for any telemarketer doing business in this
 state to knowingly make an unsolicited telemarketing sales call  to  any
 person  in  a  county,  city,  town or village under a declared state of
 emergency or disaster emergency as described in sections twenty-four  or
 twenty-eight of the executive law.
   6.  No  telemarketer  or seller shall initiate any telemarketing sales
 call by means of a technology  that  delivers  a  pre-recorded  message,
 unless  the  telemarketer  or  seller  has obtained from the customer an
 express agreement, in writing that:
   a. the telemarketer or seller obtained only after a clear and conspic-
 uous disclosure that the purpose of the agreement is  to  authorize  the
 seller to make telemarketing sales calls to such customer;
   b.  the telemarketer or seller obtained without requiring, directly or
 indirectly, that the agreement be executed as a condition of  purchasing
 any good or service;
   c.  evidences the willingness of the customer to receive telemarketing
 sales calls by or made on behalf of a specific seller; and,
   d. includes such customer's telephone number and signature.
   7. In the case of any telemarketing sales call delivered by means of a
 technology that delivers a pre-recorded message that could  be  received
 by a customer who can use an automated interactive voice and/or keypress
 activated  opt-out  mechanism to assert a do-not-call request, such call
 shall include a mechanism that allows the customer to automatically  add
 the  number called to the seller's entity specific do-not-call list, and
 which mechanism, once invoked, immediately ends the call.
   8. In the case of any telemarketing sales call delivered by means of a
 technology that delivers a pre-recorded message that could  be  answered
 by  an  answering  machine or voicemail service, that the call include a
 toll-free number that must connect the customer directly to an automated
 interactive voice or keypress activated opt-out  mechanism  that  allows
 the  consumer  to  automatically  add  the number called to the seller's
 entity specific do-not-call list, and  which  mechanism,  once  invoked,
 immediately ends the call.
   9.  In  the  case  of  any  telemarketing sales call made by a natural
 person, the telemarketer or seller shall inform the customer that he  or
 she  may  request that his or her telephone number be added to the sell-
 er's entity specific do-not-call list. If the customer opts  to  do  so,
 the  telemarketer or seller shall immediately end the call and shall add
 the number called to such list or cause the number called to be added to
 such list.
   10. No telemarketer or seller shall transmit, share, or otherwise make
 available any customer's contact information, including name,  telephone
 number,  or  email address, which has been provided to such telemarketer
 or seller by such customer, to any person, corporation, or other  entity
 without the express agreement of the consumer in writing or in electron-
 ic  format,  unless  otherwise  required by law, or pursuant to a lawful
 subpoena or court order.

 A. 3539                             5
 
   11. Telemarketers and sellers shall keep for a period  of  twenty-four
 months from the date the record is created records relating to its tele-
 marketing activities.
   12.  a. The department shall provide notice to customers of the estab-
 lishment of the national "do-not-call" registry. Any customer who wishes
 to be included on such registry shall notify the federal  trade  commis-
 sion 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.
   13. When the department 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 fourteen  of
 this  section,  the  department 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 department
 may issue and serve 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  department may petition a court of competent
 jurisdiction to enforce the subpoena and such sanctions as the court may
 direct.
   14. a. Where it is  determined  after  hearing  that  any  person  has
 violated  one  or more provisions of this section, the secretary, 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.
   15. 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 ADVERTISING
 is  made,  pursuant  to  16  C.F.R. Section 310.4(b)(1)(iii)(B), and the
 person can demonstrate that, as part of the  person's  routine  business
 practice at the time of an alleged violation, it has established, imple-
 mented  and  updated  written  policies  and  procedures  related to the
 requirements of this section prior to the date any telemarketing call is
 made;
   b. the person has trained his or her personnel in the requirements  of
 this section; and
   c.  the person maintains and can produce records demonstrating compli-
 ance with paragraphs a and b of this subdivision and the requirements of
 this section.
   16. The department shall prescribe rules and regulations to administer
 this section.
   17. Severability. If any clause, sentence, paragraph or part  of  this
 section  shall  be adjudged by any court of competent jurisdiction to be
 invalid, such judgment  shall  not  affect,  impair  or  invalidate  the
 remainder thereof, but shall be confined in its operation to the clause,

 A. 3539                             6
 
 sentence, paragraph or part thereof directly involved in the controversy
 in which such judgment shall have been rendered.
   § 2. Section 92-d of the public service law, as amended by chapter 546
 of  the laws of 2000, the opening paragraph as amended by chapter 226 of
 the laws of 2020, is amended to read as follows:
   § 92-d. Telephone solicitations. Each local exchange telephone company
 shall inform its customers of the provisions of section ninety-two-i  of
 this  article, sections three hundred ninety-nine-p, three hundred nine-
 ty-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 cramming,  telemarket-
 ers,  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.
   § 3. 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.
   § 4. This act shall take effect on the one hundred eightieth day after
 it  shall  have  become a law; provided, however, that if chapter 226 of
 the laws of 2020 shall not have taken effect on or before such date then
 the amendments to section 92-d of the public service law made by section
 two of this act shall take effect on the  same  date  and  in  the  same
 manner  as  such  chapter  of  the laws of 2020, takes effect. Effective
 immediately, the addition, amendment and/or repeal of any rule or  regu-
 lation  necessary  for  the  implementation of this act on its effective
 date are authorized to be made on or before such effective date.