Rpld S399-pp sub 10 a sub 5, amd SS399-pp & 399-z, Gen Bus L
Relates to telemarketing; prohibits pre-recorded messages in certain circumstances; requires a mechanism for consumers to automatically add their number to the seller's do-not-call list.
STATE OF NEW YORK
________________________________________________________________________
10569--A
IN ASSEMBLY
June 6, 2012
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Barrett,
Dinowitz, Camara, Gabryszak, Markey, Quart, P. Rivera, Simanowitz,
Simotas, Abbate, DenDekker) -- (at request of the Governor) -- read
once and referred to the Committee on Consumer Affairs and Protection
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the general business law, in relation to telemarketing;
and to repeal certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraph 5 of paragraph a of subdivision 10 of section
2 399-pp of the general business law is REPEALED, subparagraph 6 of para-
3 graph a is renumbered subparagraph 5, and a new subdivision 10-a is
4 added to read as follows:
5 10-a. The following persons are exempt from the fee and bonding
6 requirements set forth in paragraph f of subdivision three and subdivi-
7 sion four of this section: A person engaged in a business or occupation
8 which is licensed, registered, chartered, certified or incorporated with
9 or by any state or federal agency. Provided, however, any person not
10 licensed, registered, chartered, certified or incorporated with any New
11 York state or federal agency, shall submit evidence to the secretary of
12 state, in a form and manner to be prescribed by the secretary, of any
13 license, registration, charter, certification or incorporation issued by
14 an agency or governmental entity in this or any other state.
15 § 2. Section 399-z of the general business law, as amended by chapter
16 344 of the laws of 2010, paragraphs a and b of subdivision 1 as added by
17 section 39, subdivision 4 as amended by section 40 and subdivisions 6, 7
18 and 8 as amended by section 41 of part A of chapter 62 of the laws of
19 2011, is amended to read as follows:
20 § 399-z. Telemarketing; establishment of no telemarketing sales calls
21 statewide registry; authorization of the transfer of telephone numbers
22 on the no telemarketing sales calls statewide registry to the national
23 "do-not-call" registry. 1. As used in this section, the following terms
24 shall have the following meanings:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12139-10-2
A. 10569--A 2
1 a. "Department" shall mean the department of state.
2 b. "Secretary" shall mean the secretary of state.
3 c. "Customer" means any natural person who is a resident of this state
4 and who is or may be required to pay for or to exchange consideration
5 for goods and services offered through telemarketing;
6 d. "Doing business in this state" means conducting telephonic sales
7 calls: (i) from a location in this state; or (ii) from a location
8 outside of this state to consumers residing in this state;
9 e. "Goods and services" means any goods and services, and shall
10 include any real property or any tangible personal property or services
11 of any kind;
12 f. "Negative option feature" means, in an offer or agreement to sell
13 or provide any goods or services, a provision under which the customer's
14 silence or failure to take an affirmative action to reject such goods or
15 services or to cancel the agreement is interpreted by the seller as
16 acceptance of the offer.
17 g. "Person" means any natural person, association, partnership, firm,
18 corporation and its affiliates or subsidiaries or other business entity;
19 h. "Telemarketer" means any person who, for financial profit or
20 commercial purposes in connection with telemarketing, makes telemarket-
21 ing sales calls to a customer when the customer is in this state or any
22 person who directly controls or supervises the conduct of a telemarket-
23 er. For the purposes of this section, "commercial purposes" shall mean
24 the sale or offer for sale of goods or services;
25 [.] i. "Telemarketing" means any plan, program or campaign [which]
26 that is conducted to induce payment or the exchange of any other consid-
27 eration for any goods or services [by use of one or more telephones and
28 which] that involves more than one telephone call by a telemarketer in
29 which the customer is located within the state at the time of the call.
30 Telemarketing does not include the solicitation of sales through media
31 other than by telephone calls and does not include calls intended to
32 implement or complete a transaction to which the customer has previously
33 consented;
34 j. "Telemarketing sales call" means a telephone call made by a tele-
35 marketer or by any outbound telephone calling technology that delivers a
36 prerecorded message [either] to a customer or to [their] a customer's
37 voicemail or answering machine service for the purpose of inducing
38 payment or the exchange of any other consideration for any goods or
39 services;
40 k. "Unsolicited telemarketing sales call" means any telemarketing
41 sales call other than a call made:
42 (i) in response to an express written or verbal request [of] by the
43 customer [called]; or
44 (ii) in connection with an established business relationship, which
45 has not been terminated by either party, unless such customer has stated
46 to the telemarketer that such customer no longer wishes to receive the
47 telemarketing sales calls of such telemarketer.
48 2. No telemarketer or seller shall engage in telemarketing at any time
49 other than between 8:00 A.M. and 9:00 P.M. [local time] at the location
50 of the customer unless the [consumer] customer has given his or her
51 express consent to the call at a different time[, and]. Telemarketers
52 shall provide, in a clear and coherent manner using words with common
53 and everyday meanings, at the beginning of each telemarketing sales call
54 all of the following information:
55 [(i)] a. the telemarketer's name and the person on whose behalf the
56 solicitation is being made, if other than the telemarketer;
A. 10569--A 3
1 [(ii)] b. the purpose of the telephone call; and
2 [(iii)] c. the identity of the goods or services for which a fee will
3 be charged.
4 3. Prior to the purchase of any good or service, telemarketers shall
5 disclose to the customer the cost of the goods or services that are the
6 subject of the call and if the offer includes a negative option feature,
7 all material terms and conditions of the negative option feature,
8 including, but not limited to the fact that the customer's account will
9 be charged unless the customer takes an affirmative action to avoid the
10 charges, the dates the charges will be submitted for payment, and the
11 specific steps the customer must take to avoid the charge.
12 4. a. The department is authorized to establish, manage, and maintain
13 a no telemarketing sales calls statewide registry which shall contain a
14 list of customers who do not wish to receive unsolicited telemarketing
15 sales calls. The department may contract with a private vendor to
16 establish, manage and maintain such registry, provided the private
17 vendor has maintained national no telemarketing sales calls registries
18 for more than two years, and the contract requires the vendor to provide
19 the no telemarketing sales calls registry in a printed hard copy format
20 and in any other format as prescribed by the department.
21 b. The department is authorized to have the national "do-not-call"
22 registry established, managed and maintained by the federal trade
23 commission pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve
24 as the New York state no telemarketing sales calls statewide registry
25 provided for by this section. The department is further authorized to
26 take whatever administrative actions may be necessary or appropriate for
27 such transition including, but not limited to, providing the telephone
28 numbers of New York customers registered on the no telemarketing sales
29 calls statewide registry to the federal trade commission, for inclusion
30 on the national "do-not-call" registry.
31 5. No telemarketer or seller may make or cause to be made any unsolic-
32 ited telemarketing sales call to any customer when that customer's tele-
33 phone number has been on the national "do-not-call" registry, estab-
34 lished by the federal trade commission, for a period of thirty-one days
35 prior to the date the call is made, pursuant to 16 [CFR] C.F.R. Section
36 310.4(b)(1)(iii)(B).
37 6. No telemarketer or seller shall initiate any telemarketing sales
38 call by means of a technology that delivers a pre-recorded message,
39 unless the telemarketer or seller has obtained from the customer an
40 express agreement, in writing that:
41 a. the telemarketer or seller obtained only after a clear and conspic-
42 uous disclosure that the purpose of the agreement is to authorize the
43 seller to make telemarketing sales calls to such customer;
44 b. the telemarketer or seller obtained without requiring, directly or
45 indirectly, that the agreement be executed as a condition of purchasing
46 any good or service;
47 c. evidences the willingness of the customer to receive telemarketing
48 sales calls by or made on behalf of a specific seller; and,
49 d. includes such customer's telephone number and signature.
50 7. In the case of any telemarketing sales call delivered by means of a
51 technology that delivers a pre-recorded message that could be received
52 by a customer who can use an automated interactive voice and/or keypress
53 activated opt-out mechanism to assert a do-not-call request, such call
54 shall include a mechanism that allows the customer to automatically add
55 the number called to the seller's entity specific do-not-call list, and
56 which mechanism, once invoked, immediately ends the call.
A. 10569--A 4
1 8. In the case of any telemarketing sales call delivered by means of a
2 technology that delivers a pre-recorded message that could be answered
3 by an answering machine or voicemail service, that the call include a
4 toll-free number that must connect the customer directly to an automated
5 interactive voice or keypress activated opt-out mechanism that allows
6 the consumer to automatically add the number called to the seller's
7 entity specific do-not-call list, and which mechanism, once invoked,
8 immediately ends the call.
9 9. Telemarketers and sellers shall keep for a period of twenty-four
10 months from the date the record is created records relating to its tele-
11 marketing activities.
12 10. a. The department shall provide notice to customers of the estab-
13 lishment of the national "do-not-call" registry. Any customer who wishes
14 to be included on such registry shall notify the federal trade commis-
15 sion as directed by relevant federal regulations.
16 b. Any company that provides local telephone directories to customers
17 in this state shall inform its customers of the provisions of this
18 section by means of publishing a notice in such local telephone directo-
19 ries.
20 [7.] 11. When the department has reason to believe a telemarketer has
21 engaged in repeated unlawful acts in violation of this section, or when
22 a notice of hearing has been issued pursuant to subdivision [eight]
23 twelve of this section, the department may request in writing the
24 production of relevant documents and records as part of its investi-
25 gation. If the person upon whom such request was made fails to produce
26 the documents or records within thirty days after the date of the
27 request, the department may issue and serve subpoenas to compel the
28 production of such documents and records. If any person shall refuse to
29 comply with a subpoena issued under this section, the department may
30 petition a court of competent jurisdiction to enforce the subpoena and
31 such sanctions as the court may direct.
32 [8.] 12. a. Where it is determined after hearing that any person has
33 violated one or more provisions of this section, the secretary, or any
34 person deputized or so designated by him or her may assess a fine not to
35 exceed eleven thousand dollars for each violation.
36 b. Any proceeding conducted pursuant to paragraph a of this subdivi-
37 sion shall be subject to the state administrative procedure act.
38 c. Nothing in this subdivision shall be construed to restrict any
39 right which any person may have under any other statute or at common
40 law.
41 [9.] 13. A person shall not be held liable for violating this section
42 if:
43 a. the person has obtained a version of the "do-not-call" registry
44 from the federal trade commission no more than thirty-one days prior to
45 the date any telemarketing call is made, pursuant to 16 C.F.R. Section
46 310.4(b)(1)(iii)(B), and the person can demonstrate that, as part of the
47 person's routine business practice at the time of an alleged violation,
48 it has established, implemented and updated written policies and proce-
49 dures related to the requirements of this section prior to the date any
50 telemarketing call is made;
51 b. the person has trained his or her personnel in the requirements of
52 this section; and
53 c. the person maintains and can produce records demonstrating compli-
54 ance with paragraphs a and b of this subdivision and the requirements of
55 this section.
A. 10569--A 5
1 [10.] 14. The [board] department shall prescribe rules and regulations
2 to administer this section.
3 15. Severability. If any clause, sentence, paragraph or part of this
4 section shall be adjudged by any court of competent jurisdiction to be
5 invalid, such judgment shall not affect, impair or invalidate the
6 remainder thereof, but shall be confined in its operation to the clause,
7 sentence, paragraph or part thereof directly involved in the controversy
8 in which such judgment shall have been rendered.
9 § 3. This act shall take effect on the ninetieth day after it shall
10 have become a law.
