§ 399-p. Telemarketing; use of automatic dialing-announcing devices
and placement of consumer telephone calls. 1. Definitions. As used in
this section, the following terms shall have the following meanings:

(a) "automatic dialing-announcing device" means any automatic
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;

(b) "person" means any natural person, firm, organization,
partnership, 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
consumer 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
telephone 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.

2. No person shall operate an automatic dialing-announcing device, nor
place any consumer telephone call, except in accordance with the
provisions of this section. The use of such device by any person, either
individually or acting as an officer, agent, or employee of a person
operating automatic dialing-announcing devices, is subject to the
provisions of this section.

3. Whenever telephone calls are placed through the use of an automatic
dialing-announcing device, such device shall do all of the following:

(a) 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) disconnect the automatic dialing-announcing 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 device
which uses a random or sequential number generator to produce a number
to be called.

5. No automatic dialing-announcing device shall be used to call and no
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 thousand one of
the public health law; any hospital, nursing home, or residential 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
implemented 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
telephone call or who operates an automatic dialing-announcing device
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 for emergency
purposes shall be exempted from the provisions of this section.

(b) Notwithstanding the provisions of paragraph (a) of this
subdivision, any entity which operates a telephone warning or alert
system 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 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 violations; 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
practice law and rules, and direct restitution. Whenever the court shall
determine that a violation of subdivision 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 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 three, four or five of this section may
bring an action in his own name to enjoin such unlawful act or practice,
an action to recover his actual damages or fifty dollars, whichever is
greater, 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 subdivisions. The court
may award reasonable attorney's fees to a prevailing plaintiff.