S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2125

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by M. of A. SIMOTAS, GUNTHER, COLTON, MILLER, CASTRO, GALEF,
  HOOPER -- Multi-Sponsored by -- M. of A. CERETTO, MALLIOTAKIS, MONTES-
  ANO -- read once and referred to the Committee on Consumer Affairs and
  Protection

AN ACT to amend the general  business  law,  in  relation  to  including
  facsimile  transmissions in the no telemarketing 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 369 of the laws of 2012, is amended to read as follows:
  S 399-z. Telemarketing; establishment of no telemarketing sales  calls
AND  FACSIMILE  TRANSMISSIONS  statewide  registry; authorization of the
transfer of telephone numbers AND/OR FACSIMILE TRANSMISSIONS  NUMBER  OR
NUMBERS  on  the  no telemarketing sales calls statewide registry to the
national "do-not-call" registry. 1. As used in this section, the follow-
ing 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 OR FACSIMILE TRANSMISSIONS:  (i) from a location in this state; or
(ii) from a location outside of this state to consumers residing in this
state[;].
  D-1. "FACSIMILE TRANSMISSION" MEANS ANY METHOD OF  TRANSMISSION  OF  A
DOCUMENT  TO A FACSIMILE MACHINE AT A REMOTE LOCATION WHICH CAN AUTOMAT-
ICALLY PRODUCE A TANGIBLE COPY OF SUCH DOCUMENT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03631-01-3
              

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  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,
LIMITED LIABILITY COMPANY, corporation and  its  affiliates  or  subsid-
iaries 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  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  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 OR
FACSIMILE TRANSMISSION by  a  telemarketer  in  which  the  customer  is
located  within  the  state  at the time of the call OR FACSIMILE TRANS-
MISSION. Telemarketing  does  not  include  the  solicitation  of  sales
through  media  other than by telephone calls OR FACSIMILE TRANSMISSIONS
and does not include calls intended to implement or  complete  a  trans-
action to which the customer has previously consented[;].
  I-1.  "TELEMARKETING  FACSIMILE TRANSMISSION" MEANS A FACSIMILE TRANS-
MISSION MADE BY A TELEMARKETER TO A CUSTOMER FOR THE PURPOSE OF INDUCING
PAYMENT OR THE EXCHANGE OF ANY OTHER  CONSIDERATION  FOR  ANY  GOODS  OR
SERVICES.
  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  OR  FACSIMILE  TRANSMISSION"
means  any  telemarketing  sales  call OR TELEMARKETING FACSIMILE TRANS-
MISSION other than a call OR TRANSMISSION 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.
  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  OR FACSIMILE TRANSMISSION 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 OR
TELEMARKETING FACSIMILE TRANSMISSION all of the following information:
  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 OR FACSIMILE TRANSMISSION; and

A. 2125                             3

  c.  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 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  FACSIMILE  TRANSMISSIONS  statewide
registry  which  shall  contain  a  list of customers who do not wish to
receive  unsolicited  telemarketing  sales  calls  AND/OR  TELEMARKETING
FACSIMILE  TRANSMISSIONS.  The  department  may  contract with a private
vendor to establish, manage and maintain  such  registry,  provided  the
private  vendor has maintained national no telemarketing sales calls AND
FACSIMILE TRANSMISSIONS registries for more  than  two  years,  and  the
contract requires the vendor to provide the no telemarketing sales calls
AND  FACSIMILE  TRANSMISSIONS registry in a printed hard copy format and
in any other format as prescribed by the department.
  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 FACSIMILE TRANS-
MISSIONS statewide registry provided for by this section. The department
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 AND/OR FACSIMILE TRANSMISSION NUMBER
OR NUMBERS of New York customers  registered  on  the  no  telemarketing
sales calls AND FACSIMILE TRANSMISSIONS statewide registry to the feder-
al  trade commission, for inclusion on the national "do-not-call" regis-
try.
  5. No telemarketer or seller [may] SHALL make or cause to be made  any
unsolicited  telemarketing  sales call AND FACSIMILE TRANSMISSION to any
customer when that customer's telephone number  [has]  AND/OR  FACSIMILE
TRANSMISSION  NUMBER  OR NUMBERS HAVE been on the national "do-not-call"
registry, established by the federal trade commission, for a  period  of
thirty-one  days  prior  to  the  date  the call is made, pursuant to 16
C.F.R. Section 310.4(b)(1)(iii)(B).
  6. No telemarketer or seller shall initiate  any  telemarketing  sales
call  OR FACSIMILE TRANSMISSION 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  OR  TELEMARKETING  FACSIMILE
TRANSMISSIONS 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 OR TELEMARKETING  FACSIMILE  TRANSMISSIONS  by  or  made  on
behalf of a specific seller; and,
  d.  includes  such customer's telephone number AND/OR FACSIMILE TRANS-
MISSION NUMBER OR NUMBERS and signature.

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  7. In the case  of  any  telemarketing  sales  call  OR  TELEMARKETING
FACSIMILE  TRANSMISSION 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 mech-
anism  to  assert  a  do-not-call request, such call OR FACSIMILE TRANS-
MISSION shall include a mechanism that allows the customer  to  automat-
ically add the number called to the seller's entity specific do-not-call
list,  and  which  mechanism, once invoked, immediately ends the call OR
FACSIMILE TRANSMISSION.
  8. In the case  of  any  telemarketing  sales  call  OR  TELEMARKETING
FACSIMILE  TRANSMISSION 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 OR  FACSIMILE  TRANSMISSION  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 OR FACSIMILE TRANSMISSION.
  9. 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.
  10.  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.
  11.  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 twelve 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.
  12.  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.
  13. 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  FACSIMILE  TRANSMISSION  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

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the  time  of  an alleged violation, it has established, implemented and
updated written policies and procedures related to the  requirements  of
this  section  prior to the date any telemarketing call OR TELEMARKETING
FACSIMILE TRANSMISSION 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.
  14. The department shall prescribe rules and regulations to administer
this section.
  15.  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,
sentence, paragraph or part thereof directly involved in the controversy
in which such judgment shall have been rendered.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law, provided  that  any  rules  and  regulations
necessary  to implement the provisions of this act on its effective date
are authorized and directed to be completed on or before such date.