|SAME AS||SAME AS S03297-D|
|COSPNSR||Zebrowski, Colton, Richardson, Fitzpatrick, Eichenstein, Kim, Englebright, Frontus, Fahy, Rosenthal D, Solages, Buchwald, D'Urso, Gottfried, LiPetri, Morinello, Rosenthal L, Weprin, Peoples-Stokes, Seawright, Reyes, Norris, Walczyk, Blankenbush, Galef|
|Amd §§399-p & 399-pp, Gen Bus L|
|Limits robocalls to state residents and requires telephone service providers to offer free call mitigation technology to telephone customers.|
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STATE OF NEW YORK ________________________________________________________________________ 675--D 2019-2020 Regular Sessions IN ASSEMBLY (Prefiled) January 9, 2019 ___________ Introduced by M. of A. NIOU, ZEBROWSKI, COLTON, RICHARDSON, FITZPATRICK, EICHENSTEIN, KIM, ENGLEBRIGHT, FRONTUS, FAHY, D. ROSENTHAL, SOLAGES, BUCHWALD, D'URSO, GOTTFRIED, LiPETRI, MORINELLO, L. ROSENTHAL, WEPRIN, PEOPLES-STOKES, SEAWRIGHT, REYES, NORRIS, WALCZYK, BLANKENBUSH -- Multi-Sponsored by -- M. of A. BYRNES -- read once and referred to the Committee on Corporations, Authorities and Commissions -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amend- ments, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said commit- tee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to limiting robo- calls to state residents and to require telephone service providers to offer free call mitigation technology to telephone customers The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "robocall 2 prevention act". 3 § 2. Section 399-p of the general business law, as amended by chapter 4 581 of the laws of 1992, subdivision 6 as amended by chapter 546 of the 5 laws of 2000, subdivision 6-a as added and subdivision 8 as amended by 6 chapter 176 of the laws of 1998, is amended to read as follows: 7 § 399-p. [ Telemarketing; use] Use of automatic [ dialing-announcing] 8 dialing devices and placement of robocalls and consumer telephone calls. 9 1. Definitions. As used in this section, the following terms shall have 10 the following meanings: 11 (a) "automatic [ dialing-announcing] dialing device" means [ any auto-12 matic equipment which incorporates a storage capability of telephoneEXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02262-27-9A. 675--D 2 1 numbers to be called and is used, working alone or in conjunction with2 other equipment, to disseminate a prerecorded message to the telephone3 number called without the use of an operator] equipment that makes a 4 series of calls to stored telephone numbers, including numbers stored on 5 a list, except for equipment that requires a human to dial or place each 6 individual call one call at a time, and requires such human to then 7 remain on each call; 8 (b) "person" means any natural person, firm, organization, partner- 9 ship, association or corporation, or other entity, whether for-profit or 10 not-for-profit; 11 (c) "consumer" means a natural person who is solicited to purchase, 12 lease or receive a good or service for personal, family or household 13 use; 14 (d) "consumer telephone call" means a call made to a telephone number 15 by a telephone solicitor, whether by device, live operator, or any 16 combination thereof, for the purpose of soliciting a sale of any consum- 17 er goods or services for personal, family or household purposes to the 18 consumer called, or for the purpose of soliciting an extension of credit 19 for consumer goods or services to the consumer called, or for the 20 purpose of obtaining information that will or may be used for the direct 21 solicitation of a sale of consumer goods or services to the consumer 22 called or an extension of credit for such purposes; provided, however, 23 that "consumer telephone call" shall not include a call made by a tele- 24 phone corporation, as defined by subdivision seventeen of section two of 25 the public service law, in response to a specific inquiry initiated by a 26 consumer regarding that consumer's existing or requested telephone 27 service; [ and] 28 (e) "telephone solicitor" means a person who makes or causes to be 29 made a consumer telephone call; 30 (f) "robocall" means a call made, including a text message sent, to 31 any telephone number owned by a person or entity in the state: 32 (1) using an automatic dialing device; or 33 (2) using an artificial or prerecorded voice; 34 (g) "call mitigation technology" means technology that identifies an 35 incoming call or text message as being, or as probably being, an 36 unwanted robocall, and, on that basis, blocks the call or message, 37 diverts it to the called person's answering system, or otherwise 38 prevents it from being completed to the called person, except that it 39 permits a call or text so identified to be completed when it is identi- 40 fied as being made by a law enforcement or public safety entity; 41 (h) "prior express consent" for a call means that the purpose of the 42 call must be closely related to the purpose for which the telephone 43 number was originally provided by the called party. A call by a non-pro- 44 fit organization which is federally tax exempt pursuant to 26 U.S.C. 45 501(c), to a member who had joined such organization or to the household 46 of such a member, is presumed to be closely related. A customer's prior 47 express consent can be revoked by the customer at any time in any 48 reasonable manner, regardless of the context in which the owner or user 49 of the telephone provided consent; 50 (i) "telephone service provider" means any company that provides voice 51 service utilizing any technology, regardless of whether such provider is 52 regulated pursuant to the public service law; 53 (j) "labor organization" means any organization of any kind which 54 exists for the purpose, in whole or in part, of representing employees 55 employed within the state of New York in dealing with employers or 56 employer organizations or with a state government, or any political orA. 675--D 3 1 civil subdivision or other agency thereof, concerning terms and condi- 2 tions of employment, grievances, labor disputes, or other matters inci- 3 dental to the employment relationship. For the purposes of this section, 4 each local, parent national or parent international organization of a 5 statewide labor organization, and each statewide federation receiving 6 dues from subsidiary labor organizations, shall be considered a separate 7 labor organization; and 8 (k) "department" means the department of state. 9 2. No person shall [ operate an automatic dialing-announcing device] 10 make any robocall, nor place any consumer telephone call, except in 11 accordance with the provisions of this section. The [ use of such device] 12 making of a robocall by any person, either individually or acting as an 13 officer, agent, or employee of a person [ operating automatic dialing-an-14 nouncing devices] making a robocall, is subject to the provisions of 15 this section. 16 2-a. (a) A person shall be permitted to make a robocall only when such 17 robocall is: 18 (1) made for emergency purposes, pursuant to subdivision seven of this 19 section; 20 (2) made with the prior express consent of the called party; 21 (3) made by a labor organization to such organization's members or to 22 the household of such members; or 23 (4) authorized by regulations promulgated by the department pursuant 24 to paragraph (b) of this subdivision. 25 (b) The department, in consultation with the department of public 26 service, shall promulgate regulations to implement the provisions of 27 this subdivision, and may permit, subject to such conditions as the 28 department may prescribe, robocalls to be made to a residential tele- 29 phone line without prior express consent if such calls are not made for 30 a commercial purpose. 31 3. [ Whenever telephone calls are placed through the use of an automat-32 ic dialing-announcing device, such device shall do all of the following] 33 In addition to the provisions of subdivision two-a of this section: 34 (a) If a robocall or consumer telephone call permitted by this section 35 uses a prerecorded voice, such call shall state at the beginning of the 36 call the nature of the call and the name of the person or on whose 37 behalf the message is being transmitted and at the end of such message 38 the address, and telephone number of the person on whose behalf the 39 message is transmitted, provided such disclosures are not otherwise 40 prohibited or restricted by any federal, state or local law; and 41 (b) If a robocall permitted by this section is made using an automatic 42 dialing device, such device shall disconnect [ the automatic dialing-an-43 nouncing device] from the telephone line upon the termination of the 44 call by either the person calling or the person called. 45 4. No person shall operate an automatic [ dialing-announcing] dialing 46 device which uses a random or sequential number generator to produce a 47 number to be called. 48 4-a. (a) No person making a robocall shall knowingly cause any caller 49 identification service to transmit misleading, inaccurate, or false 50 caller identification information with the intent to defraud, cause 51 harm, or wrongfully obtain anything of value. 52 (b) This subdivision does not prohibit: 53 (1) Any authorized activity of a law enforcement agency; or 54 (2) Any activity pursuant to a court order that specifically author- 55 izes the use of caller identification manipulation.A. 675--D 4 1 4-b. (a) A telephone service provider that provides telephone service 2 to customers residing in the state shall make call mitigation technology 3 available to any such customer, upon request, and at no additional 4 charge. Such provider shall also offer to any such customer the ability 5 to have the provider prevent calls and text messages identified as orig- 6 inating from a particular person from being completed to the called 7 person, upon request, and at no additional charge. 8 (b) The department, in consultation with the department of public 9 service, shall promulgate regulations to implement the requirements of 10 this subdivision, including, if appropriate, a reasonable delay in 11 requiring implementation and offering of call mitigation technology if 12 for good cause, taking into account the consumer protection purposes of 13 this section, and including procedures for addressing incidents in which 14 a call wanted by the customer is prevented from reaching the customer. 15 The department may also promulgate regulations allowing for the require- 16 ments of this subdivision to be waived for existing network facilities 17 in instances where the telephone service provider can reasonably demon- 18 strate that call mitigation technology cannot feasibly be implemented on 19 such facilities due to technological limitations, until such time as it 20 can be feasibly implemented. 21 5. No [ automatic dialing-announcing device shall be used to call and22 no] robocall or consumer telephone call shall be placed to an emergency 23 telephone line including but not limited to any 911 or E-911 line, or 24 any emergency line of any volunteer fire company or fire department; any 25 emergency medical service, ambulance service, voluntary ambulance 26 service or hospital ambulance service as defined in section three thou- 27 sand one of the public health law; any hospital, nursing home, or resi- 28 dential health care facility as defined in section twenty-eight hundred 29 one of the public health law; any adult care facility as defined in 30 section two of the social services law; or any law enforcement agency or 31 to the telephone line of any guest room or patient room of any hospital, 32 nursing home, or residential health care facility as defined in section 33 two thousand eight hundred one of the public health law, or any adult 34 care facility as defined by section two of the social services law. It 35 shall not constitute a violation of this subdivision if the person who 36 places such a call can affirmatively establish that the call was placed 37 inadvertently despite good faith efforts on the part of such person to 38 comply with the provisions of this section and such person has imple- 39 mented a procedure to prevent subsequent calls from being placed to a 40 particular prohibited telephone number. 41 6. A telephone solicitor shall not make a consumer telephone call to a 42 consumer unless the telephone solicitor conforms with subparagraph one 43 of paragraph b of subdivision six of section three hundred ninety-nine- 44 pp of this article. Nothing contained herein shall be deemed to limit, 45 annul, alter, or affect the provisions of subdivision three of this 46 section. 47 6-a. No telephone solicitor or person who places any consumer tele- 48 phone call or [ who operates an automatic dialing-announcing device] 49 robocall and no employer of any such telephone solicitor or person shall 50 intentionally cause to be installed, or shall intentionally utilize, any 51 blocking device or service to prevent the name and/or telephone number 52 of such solicitor or person, or the name and/or telephone number of his 53 or her employer, from being displayed on a caller identification device 54 of the recipient of any such consumer telephone call. A violation of 55 this subdivision shall be subject to the provisions of subdivision eight 56 of this section.A. 675--D 5 1 7. (a) Federal, state or local municipalities, or any subdivision 2 thereof, [ using an automatic dialing-announcing device] making a robo- 3 call for emergency purposes shall be exempted from the provisions of 4 this section. 5 (b) Notwithstanding the provisions of paragraph (a) of this subdivi- 6 sion, any entity [ which operates] making a robocall for emergency 7 purposes through the operation of a telephone warning or alert system 8 [ which utilizes any such device for emergency purposes] shall also be 9 exempted from the provisions of this section. 10 8. Whenever there shall be a violation of subdivision two, three, 11 four, four-a, five, six, or six-a of this section, an application may be 12 made by the attorney general in the name of the people of the state of 13 New York to a court or justice having jurisdiction to issue an injunc- 14 tion, and upon notice to the defendant of not less than five days, to 15 enjoin and restrain the continuance of such violations; and if it shall 16 appear to the satisfaction of the court or justice, that the defendant 17 has, in fact, violated subdivision two, three, four, four-a, five, six, 18 or six-a of this section an injunction may be issued by such court or 19 justice enjoining and restraining any further violation, without requir- 20 ing proof that any person has, in fact, been injured or damaged thereby. 21 In any such proceeding, the court may make allowances to the attorney 22 general as provided in paragraph six of subdivision (a) of section 23 eighty-three hundred three of the civil practice law and rules, and 24 direct restitution. Whenever the court shall determine that a violation 25 of subdivision two, three, four, or five of this section has occurred, 26 the court may impose a civil penalty of not more than two thousand 27 dollars per call, up to a total of not more than twenty thousand 28 dollars, for calls placed in violation of such subdivisions within a 29 continuous seventy-two hour period. Whenever the court shall determine 30 that a violation of subdivision four-a of this section has occurred, the 31 court may impose a civil penalty of not less than five thousand dollars 32 nor more than ten thousand dollars for each violation. Whenever the 33 court shall determine that a violation of subdivision six of this 34 section, or a violation of subdivision six-a of this section, has 35 occurred, the court may impose a civil penalty of not more than two 36 thousand dollars. In connection with any such proposed application, the 37 attorney general is authorized to take proof and make a determination of 38 the relevant facts and to issue subpoenas in accordance with the civil 39 practice law and rules. 40 9. In addition to the right of action granted to the attorney general 41 pursuant to this section, any person who has received a telephone call 42 in violation of subdivision two, three, four, four-a or five of this 43 section may bring: 44 (a) an action in his or her own name to enjoin such unlawful act or 45 practice[ ,]; 46 (b) an action to recover his or her actual damages or [ fifty] five 47 hundred dollars, whichever is greater[ ,]; or 48 (c) both such actions. The court may, in its discretion, increase the 49 award of damages to an amount not to exceed three times the [ actual50 damages up to one thousand dollars] amount available under paragraph (b) 51 of this subdivision, if the court finds the defendant willfully or know- 52 ingly violated such subdivisions. The court [ may] shall award reasonable 53 attorney's fees to a prevailing plaintiff. Any damages recoverable 54 pursuant to this section may be recovered in any action which a court 55 may authorize to be brought as a class action pursuant to article nine 56 of the civil practice law and rules.A. 675--D 6 1 10. (a) The department, in consultation with the department of public 2 service, shall report on issues related to illegal robocalls made to 3 telephone numbers owned by a person or entity in this state, and on the 4 status of the implementation and offering of call mitigation technology 5 by telephone service providers that provide telephone service to custom- 6 ers residing in the state. Such report shall be delivered no later than 7 December first, two thousand twenty, and annually thereafter, to the 8 governor, the temporary president of the senate, the speaker of the 9 assembly, the minority leader of the senate, and the minority leader of 10 the assembly. 11 (b) Such report shall include: 12 (1) A list of telephone service providers operating in this state, and 13 the status of their implementation and offering of call mitigation tech- 14 nology; 15 (2) Information regarding delays in the implementation and offering of 16 call mitigation technology, and the reasons for such delays; 17 (3) Recommendations for additional measures to protect customers from 18 illegal robocalls; 19 (4) The number of illegal robocalls made to telephone numbers owned by 20 a person or entity in this state, to the extent that such information is 21 known; and 22 (5) Any other information or recommendations relating to the issue of 23 robocalls that the department judges to be pertinent or necessary. 24 § 3. Paragraph b of subdivision 11 of section 399-pp of the general 25 business law, as added by chapter 546 of the laws of 2000, is amended to 26 read as follows: 27 b. In every case where the court shall determine that a violation of 28 this section has occurred, it may impose a civil penalty of not less 29 than one thousand dollars nor more than two thousand dollars for each 30 violation, provided that for a violation of subdivision seven-a of this 31 section, the court may impose a civil penalty of not less than five 32 thousand dollars nor more than ten thousand dollars for each violation. 33 Such penalty shall be in addition to the denial of registration or 34 renewal, suspension of registration or revocation of registration or 35 assessment of a fine authorized by subdivision five of this section. 36 § 4. If any provision of this act, or any application of any provision 37 of this act, is held to be invalid, that shall not affect the validity 38 or effectiveness of any other provision of this act, or of any other 39 application of any provision of this act, which can be given effect 40 without that provision or application; and to that end, the provisions 41 and applications of this act are severable. 42 § 5. This act shall take effect on the ninetieth day after it shall 43 have become a law. Effective immediately, the addition, amendment 44 and/or repeal of any rule or regulation necessary for the implementation 45 of this act on its effective date are authorized and directed to be made 46 and completed on or before such effective date.