Relates to the no telemarketing sales calls statewide registry.
Ayes (10): Zeldin, Ball, Fuschillo, Little, Marcellino, Saland, Adams, Hassell-Thompson, Huntley, Squadron
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.
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.
This act would take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 2910 2011-2012 Regular Sessions IN 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 orEXPLANATION--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 forS. 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.