A10569 Summary:
BILL NO | A10569A |
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SAME AS | SAME AS S07567-A |
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SPONSOR | Rules (Barrett) |
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COSPNSR | Dinowitz, Camara, Gabryszak, Markey, Quart, Rivera P, Simanowitz, Simotas, Abbate, DenDekker |
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MLTSPNSR | |
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Rpld S399-pp sub 10 a sub 5, amd SS399-pp & 399-z, Gen Bus L | |
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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. |
A10569 Actions:
BILL NO | A10569A | |||||||||||||||||||||||||||||||||||||||||||||||||
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06/06/2012 | referred to consumer affairs and protection | |||||||||||||||||||||||||||||||||||||||||||||||||
06/08/2012 | amend and recommit to consumer affairs and protection | |||||||||||||||||||||||||||||||||||||||||||||||||
06/08/2012 | print number 10569a | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | reported referred to codes | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | reported referred to rules | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | reported | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | rules report cal.143 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | ordered to third reading rules cal.143 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | passed assembly | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | delivered to senate | |||||||||||||||||||||||||||||||||||||||||||||||||
06/12/2012 | REFERRED TO RULES | |||||||||||||||||||||||||||||||||||||||||||||||||
06/13/2012 | SUBSTITUTED FOR S7567A | |||||||||||||||||||||||||||||||||||||||||||||||||
06/13/2012 | 3RD READING CAL.1219 | |||||||||||||||||||||||||||||||||||||||||||||||||
06/13/2012 | PASSED SENATE | |||||||||||||||||||||||||||||||||||||||||||||||||
06/13/2012 | RETURNED TO ASSEMBLY | |||||||||||||||||||||||||||||||||||||||||||||||||
08/06/2012 | delivered to governor | |||||||||||||||||||||||||||||||||||||||||||||||||
08/14/2012 | signed chap.369 |
A10569 Floor Votes:
Yes
Abbate
Yes
Ceretto
Yes
Glick
Yes
Lentol
Yes
Murray
Yes
Ryan
Yes
Abinanti
Yes
Clark
Yes
Goldfeder
Yes
Lifton
Yes
Nolan
Yes
Saladino
Yes
Amedore
Yes
Colton
Yes
Goodell
Yes
Linares
Yes
Oaks
Yes
Sayward
Yes
Arroyo
ER
Conte
Yes
Gottfried
Yes
Lopez PD
Yes
O'Donnell
Yes
Scarborough
Yes
Aubry
Yes
Cook
Yes
Graf
Yes
Lopez VJ
Yes
Ortiz
Yes
Schimel
Yes
Barclay
Yes
Corwin
Yes
Gunther
Yes
Losquadro
ER
Palmesano
Yes
Schimminger
Yes
Barrett
Yes
Crespo
Yes
Hanna
Yes
Lupardo
Yes
Paulin
Yes
Simanowitz
Yes
Barron
Yes
Crouch
Yes
Hawley
Yes
Magee
Yes
Peoples Stokes
Yes
Simotas
Yes
Benedetto
Yes
Curran
ER
Heastie
Yes
Magnarelli
Yes
Perry
Yes
Skartados
Yes
Blankenbush
Yes
Cusick
Yes
Hevesi
Yes
Maisel
Yes
Pretlow
Yes
Smardz
Yes
Boyland
Yes
Cymbrowitz
Yes
Hikind
Yes
Malliotakis
Yes
Quart
Yes
Stevenson
Yes
Boyle
Yes
DenDekker
Yes
Hooper
Yes
Markey
Yes
Ra
Yes
Sweeney
Yes
Braunstein
Yes
Dinowitz
Yes
Jacobs
Yes
Mayer
Yes
Rabbitt
Yes
Tedisco
Yes
Brennan
Yes
Duprey
Yes
Jaffee
Yes
McDonough
Yes
Raia
Yes
Tenney
Yes
Brindisi
Yes
Englebright
ER
Jeffries
Yes
McEneny
Yes
Ramos
Yes
Thiele
Yes
Bronson
Yes
Espinal
Yes
Johns
Yes
McKevitt
Yes
Reilich
ER
Titone
Yes
Brook Krasny
Yes
Farrell
Yes
Jordan
Yes
McLaughlin
Yes
Reilly
Yes
Titus
Yes
Burling
Yes
Finch
Yes
Katz
ER
Meng
Yes
Rivera J
Yes
Tobacco
Yes
Butler
Yes
Fitzpatrick
Yes
Kavanagh
Yes
Miller D
Yes
Rivera N
Yes
Walter
Yes
Cahill
Yes
Friend
Yes
Kearns
Yes
Miller JM
Yes
Rivera PM
Yes
Weinstein
Yes
Calhoun
Yes
Gabryszak
ER
Kellner
Yes
Miller MG
Yes
Roberts
Yes
Weisenberg
ER
Camara
Yes
Galef
Yes
Kolb
Yes
Millman
Yes
Robinson
Yes
Weprin
Yes
Canestrari
Yes
Gantt
ER
Lancman
Yes
Montesano
Yes
Rodriguez
Yes
Wright
Yes
Castelli
Yes
Gibson
Yes
Latimer
Yes
Morelle
Yes
Rosenthal
Yes
Zebrowski
Yes
Castro
Yes
Giglio
Yes
Lavine
Yes
Moya
Yes
Russell
Yes
Mr. Speaker
‡ Indicates voting via videoconference
A10569 Text:
Go to top 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. LBD12139-10-2A. 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 and28which] 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.