S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    68
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sens. HOYLMAN, ADDABBO, BAILEY, BIAGGI, BRESLIN, BROOKS,
   COMRIE, FELDER,  GAUGHRAN,  GOUNARDES,  HARCKHAM,  JACKSON,  KAMINSKY,
   KAPLAN,  KAVANAGH,  KENNEDY,  KRUEGER, LIU, MAY, MAYER, MYRIE, PARKER,
   PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA,  SERRANO,  STAVI-
   SKY,  THOMAS -- read twice and ordered printed, and when printed to be
   committed to the Committee on Consumer Protection
 
 AN ACT to amend the general business law, in relation to limiting  robo-
   calls to state residents and to require telephone service providers to
   offer free call mitigation technology to telephone customers
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as  the  "robocall
 prevention act".
   §  2. Section 399-p of the general business law, as amended by chapter
 581 of the laws of 1992, subdivision 6 as amended by chapter 546 of  the
 laws  of  2000, subdivision 6-a as added and subdivision 8 as amended by
 chapter 176 of the laws of 1998, is amended to read as follows:
   § 399-p. [Telemarketing; use] USE  of  automatic  [dialing-announcing]
 DIALING devices and placement of ROBOCALLS AND consumer telephone calls.
 1.  Definitions. As used in this section, the following terms shall have
 the following meanings:
   (a) "automatic [dialing-announcing] DIALING device" means  [any  auto-
 matic  equipment  which  incorporates  a storage capability of telephone
 numbers to be called and is used, working alone or in  conjunction  with
 other  equipment,  to disseminate a prerecorded message to the telephone
 number called without the use of an operator]  EQUIPMENT  THAT  MAKES  A
 SERIES OF CALLS TO STORED TELEPHONE NUMBERS, INCLUDING NUMBERS STORED ON
 A LIST, EXCEPT FOR EQUIPMENT THAT REQUIRES A HUMAN TO DIAL OR PLACE EACH
 INDIVIDUAL  CALL  ONE  CALL  AT  A TIME, AND REQUIRES SUCH HUMAN TO THEN
 REMAIN ON EACH CALL;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02738-01-1

 S. 68                               2
 
   (b) "person" means any natural person,  firm,  organization,  partner-
 ship, association or corporation, or other entity, whether for-profit or
 not-for-profit;
   (c)  "consumer"  means  a natural person who is solicited to purchase,
 lease or receive a good or service for  personal,  family  or  household
 use;
   (d)  "consumer telephone call" means a call made to a telephone number
 by a telephone solicitor, whether  by  device,  live  operator,  or  any
 combination thereof, for the purpose of soliciting a sale of any consum-
 er  goods  or services for personal, family or household purposes to the
 consumer called, or for the purpose of soliciting an extension of credit
 for consumer goods or services  to  the  consumer  called,  or  for  the
 purpose of obtaining information that will or may be used for the direct
 solicitation  of  a  sale  of consumer goods or services to the consumer
 called or an extension of credit for such purposes;  provided,  however,
 that  "consumer telephone call" shall not include a call made by a tele-
 phone corporation, as defined by subdivision seventeen of section two of
 the public service law, in response to a specific inquiry initiated by a
 consumer regarding  that  consumer's  existing  or  requested  telephone
 service; [and]
   (e)  "telephone  solicitor"  means  a person who makes or causes to be
 made a consumer telephone call;
   (F) "ROBOCALL" MEANS A CALL MADE, INCLUDING A TEXT  MESSAGE  SENT,  TO
 ANY TELEPHONE NUMBER OWNED BY A PERSON OR ENTITY IN THE STATE:
   (1) USING AN AUTOMATIC DIALING DEVICE; OR
   (2) USING AN ARTIFICIAL OR PRERECORDED VOICE;
   (G)  "CALL  MITIGATION TECHNOLOGY" MEANS TECHNOLOGY THAT IDENTIFIES AN
 INCOMING CALL OR TEXT  MESSAGE  AS  BEING,  OR  AS  PROBABLY  BEING,  AN
 UNWANTED  ROBOCALL,  AND,  ON  THAT  BASIS,  BLOCKS THE CALL OR MESSAGE,
 DIVERTS IT  TO  THE  CALLED  PERSON'S  ANSWERING  SYSTEM,  OR  OTHERWISE
 PREVENTS  IT  FROM  BEING COMPLETED TO THE CALLED PERSON, EXCEPT THAT IT
 PERMITS A CALL OR TEXT SO IDENTIFIED TO BE COMPLETED WHEN IT IS  IDENTI-
 FIED AS BEING MADE BY A LAW ENFORCEMENT OR PUBLIC SAFETY ENTITY;
   (H)  "PRIOR  EXPRESS CONSENT" FOR A CALL MEANS THAT THE PURPOSE OF THE
 CALL MUST BE CLOSELY RELATED TO THE  PURPOSE  FOR  WHICH  THE  TELEPHONE
 NUMBER WAS ORIGINALLY PROVIDED BY THE CALLED PARTY. A CALL BY A NON-PRO-
 FIT  ORGANIZATION  WHICH  IS  FEDERALLY TAX EXEMPT PURSUANT TO 26 U.S.C.
 501(C), TO A MEMBER WHO HAD JOINED SUCH ORGANIZATION OR TO THE HOUSEHOLD
 OF SUCH A MEMBER, IS PRESUMED TO BE CLOSELY RELATED. A CUSTOMER'S  PRIOR
 EXPRESS  CONSENT  CAN  BE  REVOKED  BY  THE  CUSTOMER AT ANY TIME IN ANY
 REASONABLE MANNER, REGARDLESS OF THE CONTEXT IN WHICH THE OWNER OR  USER
 OF THE TELEPHONE PROVIDED CONSENT;
   (I) "TELEPHONE SERVICE PROVIDER" MEANS ANY COMPANY THAT PROVIDES VOICE
 SERVICE UTILIZING ANY TECHNOLOGY, REGARDLESS OF WHETHER SUCH PROVIDER IS
 REGULATED PURSUANT TO THE PUBLIC SERVICE LAW;
   (J)  "LABOR  ORGANIZATION"  MEANS  ANY  ORGANIZATION OF ANY KIND WHICH
 EXISTS FOR THE PURPOSE, IN WHOLE OR IN PART, OF  REPRESENTING  EMPLOYEES
 EMPLOYED  WITHIN  THE  STATE  OF  NEW  YORK IN DEALING WITH EMPLOYERS OR
 EMPLOYER ORGANIZATIONS OR WITH A STATE GOVERNMENT, OR ANY  POLITICAL  OR
 CIVIL  SUBDIVISION  OR OTHER AGENCY THEREOF, CONCERNING TERMS AND CONDI-
 TIONS OF EMPLOYMENT, GRIEVANCES, LABOR DISPUTES, OR OTHER MATTERS  INCI-
 DENTAL TO THE EMPLOYMENT RELATIONSHIP. FOR THE PURPOSES OF THIS SECTION,
 EACH  LOCAL,  PARENT  NATIONAL OR PARENT INTERNATIONAL ORGANIZATION OF A
 STATEWIDE LABOR ORGANIZATION, AND EACH  STATEWIDE  FEDERATION  RECEIVING
 DUES FROM SUBSIDIARY LABOR ORGANIZATIONS, SHALL BE CONSIDERED A SEPARATE
 LABOR ORGANIZATION; AND

 S. 68                               3
 
   (K) "DEPARTMENT" MEANS THE DEPARTMENT OF STATE.
   2.  No  person  shall [operate an automatic dialing-announcing device]
 MAKE ANY ROBOCALL, nor place any  consumer  telephone  call,  except  in
 accordance with the provisions of this section. The [use of such device]
 MAKING  OF A ROBOCALL by any person, either individually or acting as an
 officer, agent, or employee of a person [operating automatic dialing-an-
 nouncing devices] MAKING A ROBOCALL, is subject  to  the  provisions  of
 this section.
   2-A. (A) A PERSON SHALL BE PERMITTED TO MAKE A ROBOCALL ONLY WHEN SUCH
 ROBOCALL IS:
   (1) MADE FOR EMERGENCY PURPOSES, PURSUANT TO SUBDIVISION SEVEN OF THIS
 SECTION;
   (2) MADE WITH THE PRIOR EXPRESS CONSENT OF THE CALLED PARTY;
   (3)  MADE BY A LABOR ORGANIZATION TO SUCH ORGANIZATION'S MEMBERS OR TO
 THE HOUSEHOLD OF SUCH MEMBERS; OR
   (4) AUTHORIZED BY REGULATIONS PROMULGATED BY THE  DEPARTMENT  PURSUANT
 TO PARAGRAPH (B) OF THIS SUBDIVISION.
   (B)  THE  DEPARTMENT,  IN  CONSULTATION  WITH THE DEPARTMENT OF PUBLIC
 SERVICE, SHALL PROMULGATE REGULATIONS TO  IMPLEMENT  THE  PROVISIONS  OF
 THIS  SUBDIVISION,  AND  MAY  PERMIT,  SUBJECT TO SUCH CONDITIONS AS THE
 DEPARTMENT MAY PRESCRIBE, ROBOCALLS TO BE MADE TO  A  RESIDENTIAL  TELE-
 PHONE  LINE WITHOUT PRIOR EXPRESS CONSENT IF SUCH CALLS ARE NOT MADE FOR
 A COMMERCIAL PURPOSE.
   3. [Whenever telephone calls are placed through the use of an automat-
 ic dialing-announcing device, such device shall do all of the following]
 IN ADDITION TO THE PROVISIONS OF SUBDIVISION TWO-A OF THIS SECTION:
   (a) IF A ROBOCALL OR CONSUMER TELEPHONE CALL PERMITTED BY THIS SECTION
 USES A PRERECORDED VOICE, SUCH CALL SHALL state at the beginning of  the
 call  the  nature  of  the  call  and the name of the person or on whose
 behalf the message is being transmitted and at the end of  such  message
 the  address,  and  telephone  number  of the person on whose behalf the
 message is transmitted, provided  such  disclosures  are  not  otherwise
 prohibited or restricted by any federal, state or local law; and
   (b) IF A ROBOCALL PERMITTED BY THIS SECTION IS MADE USING AN AUTOMATIC
 DIALING  DEVICE, SUCH DEVICE SHALL disconnect [the automatic dialing-an-
 nouncing device] from the telephone line upon  the  termination  of  the
 call by either the person calling or the person called.
   4.  No  person shall operate an automatic [dialing-announcing] DIALING
 device which uses a random or sequential number generator to  produce  a
 number to be called.
   4-A.  (A) NO PERSON MAKING A ROBOCALL SHALL KNOWINGLY CAUSE ANY CALLER
 IDENTIFICATION SERVICE TO  TRANSMIT  MISLEADING,  INACCURATE,  OR  FALSE
 CALLER  IDENTIFICATION  INFORMATION  WITH  THE  INTENT TO DEFRAUD, CAUSE
 HARM, OR WRONGFULLY OBTAIN ANYTHING OF VALUE.
   (B) THIS SUBDIVISION DOES NOT PROHIBIT:
   (1) ANY AUTHORIZED ACTIVITY OF A LAW ENFORCEMENT AGENCY; OR
   (2) ANY ACTIVITY PURSUANT TO A COURT ORDER THAT  SPECIFICALLY  AUTHOR-
 IZES THE USE OF CALLER IDENTIFICATION MANIPULATION.
   4-B.  (A) A TELEPHONE SERVICE PROVIDER THAT PROVIDES TELEPHONE SERVICE
 TO CUSTOMERS RESIDING IN THE STATE SHALL MAKE CALL MITIGATION TECHNOLOGY
 AVAILABLE TO ANY SUCH CUSTOMER,  UPON  REQUEST,  AND  AT  NO  ADDITIONAL
 CHARGE.  SUCH PROVIDER SHALL ALSO OFFER TO ANY SUCH CUSTOMER THE ABILITY
 TO HAVE THE PROVIDER PREVENT CALLS AND TEXT MESSAGES IDENTIFIED AS ORIG-
 INATING FROM A PARTICULAR PERSON FROM  BEING  COMPLETED  TO  THE  CALLED
 PERSON, UPON REQUEST, AND AT NO ADDITIONAL CHARGE.

 S. 68                               4
 
   (B)  THE  DEPARTMENT,  IN  CONSULTATION  WITH THE DEPARTMENT OF PUBLIC
 SERVICE, SHALL PROMULGATE REGULATIONS TO IMPLEMENT THE  REQUIREMENTS  OF
 THIS  SUBDIVISION,  INCLUDING,  IF  APPROPRIATE,  A  REASONABLE DELAY IN
 REQUIRING IMPLEMENTATION AND OFFERING OF CALL MITIGATION  TECHNOLOGY  IF
 FOR  GOOD CAUSE, TAKING INTO ACCOUNT THE CONSUMER PROTECTION PURPOSES OF
 THIS SECTION, AND INCLUDING PROCEDURES FOR ADDRESSING INCIDENTS IN WHICH
 A CALL WANTED BY THE CUSTOMER IS PREVENTED FROM REACHING  THE  CUSTOMER.
 THE DEPARTMENT MAY ALSO PROMULGATE REGULATIONS ALLOWING FOR THE REQUIRE-
 MENTS  OF  THIS SUBDIVISION TO BE WAIVED FOR EXISTING NETWORK FACILITIES
 IN INSTANCES WHERE THE TELEPHONE SERVICE PROVIDER CAN REASONABLY  DEMON-
 STRATE THAT CALL MITIGATION TECHNOLOGY CANNOT FEASIBLY BE IMPLEMENTED ON
 SUCH  FACILITIES DUE TO TECHNOLOGICAL LIMITATIONS, UNTIL SUCH TIME AS IT
 CAN BE FEASIBLY IMPLEMENTED.
   5. No [automatic dialing-announcing device shall be used to  call  and
 no]  ROBOCALL OR consumer telephone call shall be placed to an emergency
 telephone line including but not limited to any 911 or  E-911  line,  or
 any emergency line of any volunteer fire company or fire department; any
 emergency   medical  service,  ambulance  service,  voluntary  ambulance
 service or hospital ambulance service as defined in section three  thou-
 sand  one of the public health law; any hospital, nursing home, or resi-
 dential health care facility as defined in section twenty-eight  hundred
 one  of  the  public  health  law; any adult care facility as defined in
 section two of the social services law; or any law enforcement agency or
 to the telephone line of any guest room or patient room of any hospital,
 nursing home, or residential health care facility as defined in  section
 two  thousand  eight  hundred one of the public health law, or any adult
 care facility as defined by section two of the social services  law.  It
 shall  not  constitute a violation of this subdivision if the person who
 places such a call can affirmatively establish that the call was  placed
 inadvertently  despite  good faith efforts on the part of such person to
 comply with the provisions of this section and such  person  has  imple-
 mented  a  procedure  to prevent subsequent calls from being placed to a
 particular prohibited telephone number.
   6. A telephone solicitor shall not make a consumer telephone call to a
 consumer unless the telephone solicitor conforms with  subparagraph  one
 of  paragraph b of subdivision six of section three hundred ninety-nine-
 pp of this article. Nothing contained herein shall be deemed  to  limit,
 annul,  alter,  or  affect  the  provisions of subdivision three of this
 section.
   6-a. No telephone solicitor or person who places  any  consumer  tele-
 phone  call  or  [who  operates  an automatic dialing-announcing device]
 ROBOCALL and no employer of any such telephone solicitor or person shall
 intentionally cause to be installed, or shall intentionally utilize, any
 blocking device or service to prevent the name and/or  telephone  number
 of  such solicitor or person, or the name and/or telephone number of his
 or her employer, from being displayed on a caller identification  device
 of  the  recipient  of  any such consumer telephone call. A violation of
 this subdivision shall be subject to the provisions of subdivision eight
 of this section.
   7. (a) Federal, state or  local  municipalities,  or  any  subdivision
 thereof,  [using  an automatic dialing-announcing device] MAKING A ROBO-
 CALL for emergency purposes shall be exempted  from  the  provisions  of
 this section.
   (b)  Notwithstanding  the provisions of paragraph (a) of this subdivi-
 sion, any entity  [which  operates]  MAKING  A  ROBOCALL  FOR  EMERGENCY
 PURPOSES  THROUGH  THE  OPERATION OF a telephone warning or alert system

 S. 68                               5
 
 [which utilizes any such device for emergency purposes]  shall  also  be
 exempted from the provisions of this section.
   8.  Whenever  there  shall  be  a violation OF SUBDIVISION TWO, THREE,
 FOUR, FOUR-A, FIVE, SIX, OR SIX-A 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 injunc-
 tion, and upon notice to the defendant of not less than  five  days,  to
 enjoin  and restrain the continuance of such violations; and if it shall
 appear to the satisfaction of the court or justice, that  the  defendant
 has,  in fact, violated SUBDIVISION TWO, THREE, FOUR, FOUR-A, FIVE, SIX,
 OR SIX-A OF this section an injunction may be issued by  such  court  or
 justice enjoining and restraining any further violation, without requir-
 ing 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 practice law and rules, and
 direct restitution. Whenever the court shall determine that a  violation
 of  subdivision  TWO, three, four, or five 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 thousand
 dollars, for calls placed in violation of  such  subdivisions  within  a
 continuous  seventy-two  hour period. WHENEVER THE COURT SHALL DETERMINE
 THAT A VIOLATION OF SUBDIVISION FOUR-A OF THIS SECTION HAS OCCURRED, THE
 COURT MAY IMPOSE A CIVIL PENALTY OF NOT LESS THAN FIVE THOUSAND  DOLLARS
 NOR  MORE  THAN  TEN  THOUSAND  DOLLARS FOR EACH VIOLATION. Whenever the
 court shall determine that  a  violation  of  subdivision  six  of  this
 section,  or  a  violation  of  subdivision  six-a  of this section, has
 occurred, the court may impose a civil penalty  of  not  more  than  two
 thousand  dollars. 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.
   9.  In addition to the right of action granted to the attorney general
 pursuant to this section, any person who has received a  telephone  call
 in  violation  of  subdivision  TWO, three, four, FOUR-A or five of this
 section may bring:
   (A) an action in his OR HER own name to enjoin such  unlawful  act  or
 practice[,];
   (B)  an  action  to  recover his OR HER actual damages or [fifty] FIVE
 HUNDRED dollars, whichever is greater[,]; or
   (C) 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] AMOUNT AVAILABLE UNDER PARAGRAPH (B)
 OF THIS SUBDIVISION, if the court finds the defendant willfully or know-
 ingly violated such subdivisions. The court [may] SHALL award reasonable
 attorney's fees to  a  prevailing  plaintiff.  ANY  DAMAGES  RECOVERABLE
 PURSUANT  TO  THIS  SECTION MAY BE RECOVERED IN ANY ACTION WHICH A COURT
 MAY AUTHORIZE TO BE BROUGHT AS A CLASS ACTION PURSUANT TO  ARTICLE  NINE
 OF THE CIVIL PRACTICE LAW AND RULES.
   10.  (A) THE DEPARTMENT, IN CONSULTATION WITH THE DEPARTMENT OF PUBLIC
 SERVICE, SHALL REPORT ON ISSUES RELATED TO  ILLEGAL  ROBOCALLS  MADE  TO
 TELEPHONE  NUMBERS OWNED BY A PERSON OR ENTITY IN THIS STATE, AND ON THE
 STATUS OF THE IMPLEMENTATION AND OFFERING OF CALL MITIGATION  TECHNOLOGY
 BY TELEPHONE SERVICE PROVIDERS THAT PROVIDE TELEPHONE SERVICE TO CUSTOM-
 ERS  RESIDING IN THE STATE. SUCH REPORT SHALL BE DELIVERED NO LATER THAN
 DECEMBER FIRST, TWO THOUSAND TWENTY-TWO, AND ANNUALLY THEREAFTER, TO THE

 S. 68                               6
 
 GOVERNOR, THE TEMPORARY PRESIDENT OF THE  SENATE,  THE  SPEAKER  OF  THE
 ASSEMBLY,  THE MINORITY LEADER OF THE SENATE, AND THE MINORITY LEADER OF
 THE ASSEMBLY.
   (B) SUCH REPORT SHALL INCLUDE:
   (1) A LIST OF TELEPHONE SERVICE PROVIDERS OPERATING IN THIS STATE, AND
 THE STATUS OF THEIR IMPLEMENTATION AND OFFERING OF CALL MITIGATION TECH-
 NOLOGY;
   (2) INFORMATION REGARDING DELAYS IN THE IMPLEMENTATION AND OFFERING OF
 CALL MITIGATION TECHNOLOGY, AND THE REASONS FOR SUCH DELAYS;
   (3)  RECOMMENDATIONS FOR ADDITIONAL MEASURES TO PROTECT CUSTOMERS FROM
 ILLEGAL ROBOCALLS;
   (4) THE NUMBER OF ILLEGAL ROBOCALLS MADE TO TELEPHONE NUMBERS OWNED BY
 A PERSON OR ENTITY IN THIS STATE, TO THE EXTENT THAT SUCH INFORMATION IS
 KNOWN; AND
   (5) ANY OTHER INFORMATION OR RECOMMENDATIONS RELATING TO THE ISSUE  OF
 ROBOCALLS THAT THE DEPARTMENT JUDGES TO BE PERTINENT OR NECESSARY.
   §  3.  Paragraph  b of subdivision 11 of section 399-pp of the general
 business law, as added by chapter 546 of the laws of 2000, is amended to
 read as follows:
   b. In every case where the court shall determine that a  violation  of
 this  section  has  occurred,  it may impose a civil penalty of not less
 than one thousand dollars nor more than two thousand  dollars  for  each
 violation,  PROVIDED THAT FOR A VIOLATION OF SUBDIVISION SEVEN-A OF THIS
 SECTION, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT  LESS  THAN  FIVE
 THOUSAND  DOLLARS NOR MORE THAN TEN THOUSAND DOLLARS FOR EACH VIOLATION.
 Such penalty shall be in addition  to  the  denial  of  registration  or
 renewal,  suspension  of  registration  or revocation of registration or
 assessment of a fine authorized by subdivision five of this section.
   § 4. If any provision of this act, or any application of any provision
 of this act, is  held to be invalid, that shall not affect the  validity
 or  effectiveness  of  any  other provision of this act, or of any other
 application of any provision of this act,  which  can  be  given  effect
 without  that  provision or application; and to that end, the provisions
 and applications of this act are severable.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law.    Effective  immediately, the addition, amendment
 and/or repeal of any rule or regulation necessary for the implementation
 of this act on its effective date are authorized to be made on or before
 such effective date.