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.
STATE OF NEW YORK
________________________________________________________________________
1191--A
2013-2014 Regular Sessions
IN ASSEMBLY(Prefiled)
January 9, 2013
___________
Introduced by M. of A. COLTON -- read once and referred to the Committee
on Consumer Affairs and Protection -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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:
1 Section 1. The business corporation law is amended by adding a new
2 section 521 to read as follows:
3 § 521. Applicability of the general business law to business corpo-
4 rations that maintain data.
5 Every business corporation organized under this chapter and every
6 foreign corporation (including every foreign professional service corpo-
7 ration) qualified to do business in this state pursuant to this chapter
8 is subject to section three hundred ninety-d of the general business
9 law.
10 § 2. The general business law is amended by adding a new section 390-d
11 to read as follows:
12 § 390-d. Unsolicited text messages. 1. Except as provided in subdi-
13 vision two of this section, no person or entity conducting business in
14 this state shall transmit or cause to be transmitted a text message
15 advertisement to a cellular telephone or pager equipped with short
16 message capability or any similar capability allowing the transmission
17 of text messages. A text message advertisement is a message, the princi-
18 pal purpose of which is to promote the sale of goods or services to the
19 recipient, consisting of advertising material for the lease, sale,
20 rental, gift offer, or other disposition of any realty, goods, services,
21 or extension of credit.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04181-03-3
A. 1191--A 2
1 2. This section shall not apply to text messages transmitted at the
2 direction of a person or entity offering cellular telephone or pager
3 service, or by a business or affiliates of that business, that has an
4 existing relationship with the subscriber, but only if the subscriber
5 has provided consent to the person or entity offering cellular telephone
6 or pager service or business with which he or she has that relationship
7 to receive text messages from that business or affiliates of that busi-
8 ness. "Affiliate" means any company that controls, is controlled by, or
9 is under common control with, another company. A specific, separate
10 consent must be given for each individual person or entity, business, or
11 affiliate.
12 3. Whenever there shall be a violation of this section, an application
13 may be made by the attorney general in the name of the people of the
14 state of New York to a court or justice having jurisdiction to issue an
15 injunction, and upon notice to the defendant of not less than five days,
16 to enjoin and restrain the continuance of such violation; and if it
17 shall appear to the satisfaction of the court or justice, that the
18 defendant has, in fact, violated this section an injunction may be
19 issued by such court or justice enjoining and restraining any further
20 violation, without requiring proof that any person has, in fact, been
21 injured or damaged thereby. In any such proceeding, the court may make
22 allowances to the attorney general as provided in paragraph six of
23 subdivision (a) of section eighty-three hundred three of the civil prac-
24 tice law and rules, and direct restitution. Whenever the court shall
25 determine that a violation of a subdivision of this section has
26 occurred, the court may impose a civil penalty of not more than two
27 thousand dollars per text message, up to a total of not more than twenty
28 thousand dollars, for text messages placed in violation of such subdivi-
29 sions within a continuous seventy-two hour period. In connection with
30 any such proposed application, the attorney general is authorized to
31 take proof and make a determination of the relevant facts and to issue
32 subpoenas in accordance with the civil practice law and rules.
33 4. In addition to the right of action granted to the attorney general
34 pursuant to this section, any person who has received a text message in
35 violation of subdivision one of this section may bring an action in his
36 or her own name to enjoin such unlawful act or practice, an action to
37 recover his or her actual damages or fifty dollars, whichever is great-
38 er, or both such actions. The court may, in its discretion, increase
39 the award of damages to an amount not to exceed three times the actual
40 damages up to one thousand dollars, if the court finds the defendant
41 willfully or knowingly violated such subdivision. The court may award
42 reasonable attorney's fees to a prevailing plaintiff.
43 § 3. This act shall take effect on the ninetieth day after it shall
44 have become a law.
