Prohibits the transmission of unsolicited advertising text messages to cellular telephones or pagers; makes an exception for providers of such services and their affiliates who have permission; provides for enforcement by the attorney general and a private right of action.
TITLE OF BILL: An act to amend the business corporation law and the general business law, in relation to prohibiting the transmission of certain text messages to cellular telephones or pagers
PURPOSE: This bill would, subject to certain exceptions, generally prohibit a person or entity conducting business in this state from transmitting or causing to be transmitted a text message consisting of unsolicited advertising material to a cellular telephone or pager equipped with short message capability or any similar capability allowing the transmission of text messages.
SUMMARY OF PROVISIONS: Amends the business corporation law and the general business law to prohibit a person or business in New York from sending an unsolicited text message advertisement.
Defines a text message advertisement.
Describes the exceptions to the law; shall not apply if the service subscriber has affirmatively chosen, or opted-in, to receive messages from either the service provider, a business with an existing relationship, or an affiliate of that business. Consent is required for each entity sending messages.
Allows for the state to sue as well as an individual.
Provides for an effective date of 90 days after it shall have become a law.
JUSTIFICATION: This bill seeks to end the practice of unsolicited text messaging before it escalates to a level that causes an impossible burden for wireless telephone and pager subscribers and the wireless communication industry. Unsolicited text messaging is similar to unsolicited telephone calls and unsolicited email. In addition, when a company sends out unsolicited text messages, it often ends up costing subscribers because most cellular phone and pager service providers charge for every text message in excess of a specified monthly limit. This bill is designed to remedy the situation by assuring wireless communication users that they will not have to pay for any unsolicited text messages. Proponents point out that unsolicited text messages can cause safety hazards. For example, unsolicited text messages can create a hazard if sent to an individual while driving an automobile because, unlike
ordinary phone calls, it is not possible to receive text messages in a hands-free mode of operation.
Additionally, cellular phones and pagers have become vital communication links between emergency personnel in crisis situations. Sending unsolicited text messages to emergency personnel might compromise a life threatening emergency situation if the text message ties up the communication line. This also is burdensome because people are required to examine their cellular phone or pager for every received message. Unsolicited text messaging causes a problem not just for the customers, but for the service providers as well. As more people are hit with text messaging spam, more customers are turned off to the service, hurting business for the carriers. Recent articles depicted the newest advertising frontier as being attached to your hip or in your purse. Statistics show that unsolicited text messaging can potentially be sent to an estimated 100 million cell phones in the United States. The Wall Street Journal projects that 110 million cell phones in the United States will possess text messaging capabilities this year. This statistic shows a dramatic increase from the 37 million text messaging capable phones that existed in 1999.
LEGISLATIVE HISTORY: New in Senate. A.2566 Consumer Protection Committee
FISCAL IMPLICATIONS: None known.
EFFECTIVE DATE: 90 days after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 7157 IN SENATE May 1, 2012 ___________Introduced by Sen. GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Corporations, Authorities and Commissions AN ACT to amend the business corporation law and the general business law, in relation to prohibiting the transmission of certain text messages to cellular telephones or pagers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The business corporation law is amended by adding a new section 521 to read as follows: S 521. APPLICABILITY OF THE GENERAL BUSINESS LAW TO BUSINESS CORPO- RATIONS THAT MAINTAIN DATA. EVERY BUSINESS CORPORATION ORGANIZED UNDER THIS CHAPTER AND EVERY FOREIGN CORPORATION (INCLUDING EVERY FOREIGN PROFESSIONAL SERVICE CORPO- RATION) QUALIFIED TO DO BUSINESS IN THIS STATE PURSUANT TO THIS CHAPTER IS SUBJECT TO SECTION THREE HUNDRED NINETY-D OF THE GENERAL BUSINESS LAW. S 2. The general business law is amended by adding a new section 390-d to read as follows: S 390-D. UNSOLICITED TEXT MESSAGES. 1. EXCEPT AS PROVIDED IN SUBDI- VISION TWO OF THIS SECTION, NO PERSON OR ENTITY CONDUCTING BUSINESS IN THIS STATE SHALL TRANSMIT OR CAUSE TO BE TRANSMITTED A TEXT MESSAGE ADVERTISEMENT TO A CELLULAR TELEPHONE OR PAGER EQUIPPED WITH SHORT MESSAGE CAPABILITY OR ANY SIMILAR CAPABILITY ALLOWING THE TRANSMISSION OF TEXT MESSAGES. A TEXT MESSAGE ADVERTISEMENT IS A MESSAGE, THE PRINCI- PAL PURPOSE OF WHICH IS TO PROMOTE THE SALE OF GOODS OR SERVICES TO THE RECIPIENT, CONSISTING OF ADVERTISING MATERIAL FOR THE LEASE, SALE, RENTAL, GIFT OFFER, OR OTHER DISPOSITION OF ANY REALTY, GOODS, SERVICES, OR EXTENSION OF CREDIT. 2. THIS SECTION SHALL NOT APPLY TO TEXT MESSAGES TRANSMITTED AT THE DIRECTION OF A PERSON OR ENTITY OFFERING CELLULAR TELEPHONE OR PAGER SERVICE, OR BY A BUSINESS OR AFFILIATES OF THAT BUSINESS, THAT HAS AN EXISTING RELATIONSHIP WITH THE SUBSCRIBER, BUT ONLY IF THE SUBSCRIBER HAS PROVIDED CONSENT TO THE PERSON OR ENTITY OFFERING CELLULAR TELEPHONEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04139-01-1 S. 7157 2
OR PAGER SERVICE OR BUSINESS WITH WHICH HE OR SHE HAS THAT RELATIONSHIP TO RECEIVE TEXT MESSAGES FROM THAT BUSINESS OR AFFILIATES OF THAT BUSI- NESS. "AFFILIATE" MEANS ANY COMPANY THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, ANOTHER COMPANY. A SPECIFIC, SEPARATE CONSENT MUST BE GIVEN FOR EACH INDIVIDUAL PERSON OR ENTITY, BUSINESS, OR AFFILIATE. 3. 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 VIOLATION; 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 PRAC- TICE LAW AND RULES, AND DIRECT RESTITUTION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF A SUBDIVISION 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 THOU- SAND DOLLARS, FOR CALLS PLACED IN VIOLATION OF SUCH SUBDIVISIONS WITHIN A CONTINUOUS SEVENTY-TWO HOUR PERIOD. 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. 4. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY GENERAL PURSUANT TO THIS SECTION, ANY PERSON WHO HAS RECEIVED A TEXT MESSAGE IN VIOLATION OF SUBDIVISION ONE OF THIS SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS OR HER ACTUAL DAMAGES OR FIFTY DOLLARS, WHICHEVER IS GREAT- ER, 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 SUBDIVISION. THE COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF. S 3. This act shall take effect on the ninetieth day after it shall have become a law.