S T A T E O F N E W Y O R K
________________________________________________________________________
4754
2011-2012 Regular Sessions
I N A S S E M B L Y
February 7, 2011
___________
Introduced by M. of A. SIMOTAS -- read once and referred to the Commit-
tee 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 344 of the laws of 2010, 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 AND FACSIMILE TRANSMISSIONS
statewide registry to the national "do-not-call" 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 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.
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[;].
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05209-01-1
A. 4754 2
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 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 FACSIMILE
MACHINES and which 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 TRANSMISSION. Telemar-
keting does not include the solicitation of sales through media other
than by telephone calls[;] OR FACSIMILE TRANSMISSIONS.
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 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 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 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.
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 FACSIMILE TRANS-
MISSION 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 telemarketing sales call OR TELEMARKETING FACSIMILE TRANSMISSION
all of the following 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 and if the offer includes a negative option feature,
A. 4754 3
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 board 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 unso-
licited telemarketing sales calls AND/OR TELEMARKETING FACSIMILE 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 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 board.
b. The board 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 TRANSMISSIONS
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 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 federal trade commis-
sion, for inclusion on the national "do-not-call" registry.
5. No telemarketer or seller [may] SHALL make or cause to be made any
unsolicited telemarketing sales call OR FACSIMILE TRANSMISSION to any
customer when that customer's telephone number has 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 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" 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.
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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.
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" 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 has established,
implemented and updated written policies and procedures related to the
requirements of this section prior to the date any telemarketing call 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 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.