S2910-2011 - NY Senate Open Legislation - Relates to the no telemarketing sales calls statewide registry

Relates to the no telemarketing sales calls statewide registry.

Sponsor: ZELDIN / Co-sponsor(s): AVELLA / Committee: CONSUMER PROTECTION
Law Section: General Business Law / Law: Amd S399-z, Gen Bus L

S2910-2011 Actions

Jan 4, 2012: REFERRED TO CONSUMER PROTECTION
Jun 24, 2011: COMMITTED TO RULES
Feb 15, 2011: ADVANCED TO THIRD READING
Feb 14, 2011: 2ND REPORT CAL.
Feb 8, 2011: 1ST REPORT CAL.82
Feb 3, 2011: REFERRED TO CONSUMER PROTECTION

S2910-2011 Meetings

Consumer Protection: Feb 8, 2011

S2910-2011 Calendars

S2910-2011 Votes

VOTE: COMMITTEE VOTE: - Consumer Protection - Feb 8, 2011

Ayes (10): Zeldin, Ball, Fuschillo, Little, Marcellino, Saland, Adams, Hassell-Thompson, Huntley, Squadron

S2910-2011 Memo

BILL NUMBER:S2910

TITLE OF BILL:

An act
to amend the general business law, in relation to the no telemarketing
sales calls statewide registry

PURPOSE OR GENERAL IDEA OF BILL:

This bill would add telecopier numbers to the state-wide do-not-call
registry in an efforts to stop unwanted advertising by facsimile
transmissions.

SUMMARY OF SPECIFIC PROVISIONS:

This bill would amend Section 399-z of the general business law, to
include facsimile transmissions under the provisions of the
do-not-call registry.

Pursuant to this bill, facsimiie transmissions would be handled in the
same manner as the existing provisions for telephone numbers.

JUSTIFICATION:

Unwanted faxes cost money in the form of wasted paper and toner, tie up
fax lines for important transmissions, and are a general nuisance to
those who do not wish to receive them.

By adding fax numbers to the do-not-call registry telecopier owners
may choose not to receive unsolicited telemarketing, just like
regular phone numbers.

PRIOR LEGISLATIVE HISTORY:

This is a new bill.

FISCAL IMPLICATIONS:

None Noted.

EFFECTIVE DATE:

This act would take effect immediately.

S2910-2011 Text

 S T A T E   O F   N E W   Y O R K
 
                                          2910
 2011-2012 Regular Sessions
 I N  SENATE
 February 3, 2011
 
 Introduced  by  Sen.  ZELDIN -- 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 the no telemar
 keting sales calls 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 344 of the laws of 2010, is amended to read as follows:

 

S 399-z. Telemarketing; establishment of no telemarketing sales  calls
 OR  FACSIMILE  SALES  TRANSMISSIONS statewide registry; authorization of
 the transfer of telephone numbers on the no telemarketing sales calls OR
 FACSIMILE  SALES  TRANSMISSIONS  statewide  registry  to  the   national
 ["do-not-call"]  "DO-NOT-CALL-OR-TRANSMIT"  registry. 1. As used in this
 section, the following terms shall have the following meanings:

 a. "Board" shall mean the consumer protection board;
 b. "Director" means the executive director of the consumer  protection
 board;
 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  OR  FACSIMILE  SALES TRANSMISSIONS:   (i) from a location in this
 state; or (ii) from a location outside of this state to consumers resid
 ing in this state;
 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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD05222-01-1
        S. 2910                             2
 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 OR FACSIMILE SALES TRANSMISSIONS to a customer when  the
 customer  is in this state or any person who directly controls or super
 vises the conduct of a telemarketer. 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  which  is
 conducted  to  induce payment or the exchange of any other consideration
 for any goods or services by use of one or more telephones OR  TELECOPI
 ERS  and which involves more than one telephone call OR FACSIMILE TRANS
 MISSION by a telemarketer in which the customer is  located  within  the
 state  at  the time of the call OR TRANSMISSION.  Telemarketing does not
 include the solicitation of sales through media other than by  telephone
 calls OR FACSIMILE TRANSMISSIONS;
 j.  "Telemarketing  sales  call"  means  a telephone call OR FACSIMILE
 TRANSMISSION made by a telemarketer or by any outbound telephone calling
 technology that delivers a prerecorded message either to a  customer  or
 to  their  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 OR FACSIMILE TRANSMISSION other  than  a  call  OR  FACSIMILE
 TRANSMISSION made:

 (i) in response to an express written or verbal request of the custom
 er called; 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.  "TELECOPIER"  MEANS A TRANSMITTING AND RECEIVING TELECOMMUNICATION
 DEVICE USED FOR PRODUCING FACSIMILE COPIES OF DOCUMENTS.
 2. No telemarketer or seller shall engage in telemarketing at any time
 other than between 8:00 A.M. and 9:00 P.M. local time unless the consum
 er has given his or her express consent to the call OR TRANSMISSION at a
 different time, and shall provide, in a clear and coherent manner  using
 words  with common and everyday meanings, at the beginning of each tele
 marketing sales call OR FACSIMILE SALES TRANSMISSION all of the  follow
 ing information:

 (i)  the telemarketer's name and the person on whose behalf the solic
 itation is being made, if other than the telemarketer;
 (ii) the purpose of the telephone call OR FACSIMILE TRANSMISSION; and
 (iii) the identity of the goods or services for which a  fee  will  be
 charged.
 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 OR TRANSMISSION 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
        S. 2910                             3
 payment, and the specific steps the customer  must  take  to  avoid  the
 charge.
 4.  a. The board is authorized to establish, manage, and maintain a no
 telemarketing sales calls OR  FACSIMILE  SALES  TRANSMISSIONS  statewide
 registry  which  shall  contain  a  list of customers who do not wish to
 receive unsolicited telemarketing sales calls OR FACSIMILE SALES  TRANS
 MISSIONS.    The  board 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 FACSIMILE  SALES  TRANS
 MISSIONS  registries  for more than two years, and the contract requires
 the vendor to provide the no  telemarketing  sales  calls  OR  FACSIMILE
 SALES  TRANSMISSIONS  registry  in a printed hard copy format and in any
 other format as prescribed by the board.
 b. The board  is  authorized  to  have  the  national  ["do-not-call"]
 "DO-NOT-CALL-OR-TRANSMIT"  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
 statewide registry provided for by this section. The  board  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 OR TELECOPIER NUMBERS of New York customers regis
 tered on the no telemarketing sales  calls  OR  FACSIMILE  SALES  TRANS
 MISSION  statewide  registry to the federal trade commission, for inclu
 sion on the national ["do-not-call"] "DO-NOT-CALL-OR-TRANSMIT" registry.
 5. No telemarketer or seller may make or cause to be made any unsolic
 ited telemarketing sales call OR FACSIMILE SALES  TRANSMISSIONS  to  any
 customer  when  that customer's telephone number OR TELECOPIER NUMBER OR
 NUMBERS has been on the national  ["do-not-call"]  "DO-NOT-CALL-OR-TRAN
 SMIT" registry, established by the federal trade commission, for a peri
 od  of  thirty-one  days  prior  to the date the call OR TRANSMISSION is
 made, pursuant to 16 CFR

Section 310.4(b)(1)(iii)(B).
 6. a. The board shall provide notice to customers of the establishment
 of the national ["do-not-call"] "DO-NOT-CALL-OR-TRANSMIT" registry.  Any
 customer  who  wishes  to  be included on such registry shall notify the
 federal trade commission 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.
 7. When the board 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 eight of this section,
 the board 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  board  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  board may petition a court of competent jurisdiction to enforce the
 subpoena and such sanctions as the court may direct.
 8. a. Where it  is  determined  after  hearing  that  any  person  has
 violated  one  or  more provisions of this section, the director, 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.
        S. 2910                             4
 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.
 9. A person shall not be held liable for violating this section if:

 a.   the   person  has  obtained  a  version  of  the  ["do-not-call"]
 "DO-NOT-CALL-OR-TRANSMIT" registry from the federal trade commission  no
 more  than  thirty-one  days prior to the date any telemarketing call OR
 FACSIMILE SALES TRANSMISSION is made,  pursuant  to  16  C.F.R.  Section
 310.4(b)(1)(iii)(B),  and has established, implemented and updated writ
 ten policies and procedures related to the requirements of this  section
 prior to the date any telemarketing call OR FACSIMILE SALES TRANSMISSION
 is made;
 b.  the person has trained his or her personnel in the requirements of
 this section; and
 c. the person maintains records demonstrating  compliance  with  para
 graphs a and b of this subdivision and the requirements of this section.
 10. The board shall prescribe rules and regulations to administer this
 section.
 

S 2. This act shall take effect immediately.

S2910-2011: Relates to the no telemarketing sales calls statewide registry