•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

S03297 Summary:

BILL NOS03297D
 
SAME ASSAME AS A00675-D
 
SPONSORHOYLMAN
 
COSPNSRCARLUCCI, ADDABBO, BAILEY, BIAGGI, BRESLIN, BROOKS, COMRIE, FELDER, GAUGHRAN, GOUNARDES, HARCKHAM, JACKSON, KAMINSKY, KAPLAN, KAVANAGH, KENNEDY, KRUEGER, LIU, MAY, MAYER, MONTGOMERY, MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, STAVISKY, THOMAS
 
MLTSPNSR
 
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.
Go to top

S03297 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3297--D
            Cal. No. 318
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    February 5, 2019
                                       ___________
 
        Introduced by Sens. HOYLMAN, CARLUCCI, ADDABBO, BAILEY, BIAGGI, BRESLIN,
          BROOKS,  COMRIE,  GAUGHRAN,  GOUNARDES,  HARCKHAM,  JACKSON, KAMINSKY,
          KAPLAN, KAVANAGH, KENNEDY, KRUEGER,  MAY,  MAYER,  MONTGOMERY,  MYRIE,
          PARKER,  PERSAUD, RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO,
          STAVISKY, THOMAS -- read twice and ordered printed, and  when  printed
          to  be  committed to the Committee on Energy and Telecommunications --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted  to said committee -- reported favorably from said commit-
          tee, ordered to first and second report, ordered to a  third  reading,
          amended  and  ordered  reprinted,  retaining its place in the order of
          third reading -- again amended and ordered  reprinted,  retaining  its
          place  in  the  order  of  third  reading -- again amended and ordered
          reprinted, retaining its place in the order of third reading
 
        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 telephone
    13  numbers to be called and is used, working alone or in  conjunction  with

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02262-26-9

        S. 3297--D                          2

     1  other  equipment,  to disseminate a prerecorded message to the telephone
     2  number called without the use of an operator]  equipment  that  makes  a
     3  series of calls to stored telephone numbers, including numbers stored on
     4  a list, except for equipment that requires a human to dial or place each
     5  individual  call  one  call  at  a time, and requires such human to then
     6  remain on each call;
     7    (b) "person" means any natural person,  firm,  organization,  partner-
     8  ship, association or corporation, or other entity, whether for-profit or
     9  not-for-profit;
    10    (c)  "consumer"  means  a natural person who is solicited to purchase,
    11  lease or receive a good or service for  personal,  family  or  household
    12  use;
    13    (d)  "consumer telephone call" means a call made to a telephone number
    14  by a telephone solicitor, whether  by  device,  live  operator,  or  any
    15  combination thereof, for the purpose of soliciting a sale of any consum-
    16  er  goods  or services for personal, family or household purposes to the
    17  consumer called, or for the purpose of soliciting an extension of credit
    18  for consumer goods or services  to  the  consumer  called,  or  for  the
    19  purpose of obtaining information that will or may be used for the direct
    20  solicitation  of  a  sale  of consumer goods or services to the consumer
    21  called or an extension of credit for such purposes;  provided,  however,
    22  that  "consumer telephone call" shall not include a call made by a tele-
    23  phone corporation, as defined by subdivision seventeen of section two of
    24  the public service law, in response to a specific inquiry initiated by a
    25  consumer regarding  that  consumer's  existing  or  requested  telephone
    26  service; [and]
    27    (e)  "telephone  solicitor"  means  a person who makes or causes to be
    28  made a consumer telephone call;
    29    (f) "robocall" means a call made, including a text  message  sent,  to
    30  any telephone number owned by a person or entity in the state:
    31    (1) using an automatic dialing device; or
    32    (2) using an artificial or prerecorded voice;
    33    (g)  "call  mitigation technology" means technology that identifies an
    34  incoming call or text  message  as  being,  or  as  probably  being,  an
    35  unwanted  robocall,  and,  on  that  basis,  blocks the call or message,
    36  diverts it  to  the  called  person's  answering  system,  or  otherwise
    37  prevents  it  from  being completed to the called person, except that it
    38  permits a call or text so identified to be completed when it is  identi-
    39  fied as being made by a law enforcement or public safety entity;
    40    (h)  "prior  express consent" for a call means that the purpose of the
    41  call must be closely related to the  purpose  for  which  the  telephone
    42  number was originally provided by the called party. A call by a non-pro-
    43  fit  organization  which  is  federally tax exempt pursuant to 26 U.S.C.
    44  501(c), to a member who had joined such organization or to the household
    45  of such a member, is presumed to be closely related. A customer's  prior
    46  express  consent  can  be  revoked  by  the  customer at any time in any
    47  reasonable manner, regardless of the context in which the owner or  user
    48  of the telephone provided consent;
    49    (i) "telephone service provider" means any company that provides voice
    50  service utilizing any technology, regardless of whether such provider is
    51  regulated pursuant to the public service law;
    52    (j)  "labor  organization"  means  any  organization of any kind which
    53  exists for the purpose, in whole or in part, of  representing  employees
    54  employed  within  the  state  of  New  York in dealing with employers or
    55  employer organizations or with a state government, or any  political  or
    56  civil  subdivision  or other agency thereof, concerning terms and condi-

        S. 3297--D                          3
 
     1  tions of employment, grievances, labor disputes, or other matters  inci-
     2  dental to the employment relationship. For the purposes of this section,
     3  each  local,  parent  national or parent international organization of a
     4  statewide  labor  organization,  and each statewide federation receiving
     5  dues from subsidiary labor organizations, shall be considered a separate
     6  labor organization; and
     7    (k) "department" means the department of state.
     8    2. No person shall [operate an  automatic  dialing-announcing  device]
     9  make  any  robocall,  nor  place  any consumer telephone call, except in
    10  accordance with the provisions of this section. The [use of such device]
    11  making of a robocall by any person, either individually or acting as  an
    12  officer, agent, or employee of a person [operating automatic dialing-an-
    13  nouncing  devices]  making  a  robocall, is subject to the provisions of
    14  this section.
    15    2-a. (a) A person shall be permitted to make a robocall only when such
    16  robocall is:
    17    (1) made for emergency purposes, pursuant to subdivision seven of this
    18  section;
    19    (2) made with the prior express consent of the called party;
    20    (3) made by a labor organization to such organization's members or  to
    21  the household of such members; or
    22    (4)  authorized  by regulations promulgated by the department pursuant
    23  to paragraph (b) of this subdivision.
    24    (b) The department, in consultation  with  the  department  of  public
    25  service,  shall  promulgate  regulations  to implement the provisions of
    26  this subdivision, and may permit, subject  to  such  conditions  as  the
    27  department  may  prescribe,  robocalls to be made to a residential tele-
    28  phone line without prior express consent if such calls are not made  for
    29  a commercial purpose.
    30    3. [Whenever telephone calls are placed through the use of an automat-
    31  ic dialing-announcing device, such device shall do all of the following]
    32  In addition to the provisions of subdivision two-a of this section:
    33    (a) If a robocall or consumer telephone call permitted by this section
    34  uses  a prerecorded voice, such call shall state at the beginning of the
    35  call the nature of the call and the name  of  the  person  or  on  whose
    36  behalf  the  message is being transmitted and at the end of such message
    37  the address, and telephone number of the  person  on  whose  behalf  the
    38  message  is  transmitted,  provided  such  disclosures are not otherwise
    39  prohibited or restricted by any federal, state or local law; and
    40    (b) If a robocall permitted by this section is made using an automatic
    41  dialing device, such device shall disconnect [the automatic  dialing-an-
    42  nouncing  device]  from  the  telephone line upon the termination of the
    43  call by either the person calling or the person called.
    44    4. No person shall operate an automatic  [dialing-announcing]  dialing
    45  device  which  uses a random or sequential number generator to produce a
    46  number to be called.
    47    4-a. (a) No person making a robocall shall knowingly cause any  caller
    48  identification  service  to  transmit  misleading,  inaccurate, or false
    49  caller identification information with  the  intent  to  defraud,  cause
    50  harm, or wrongfully obtain anything of value.
    51    (b) This subdivision does not prohibit:
    52    (1) Any authorized activity of a law enforcement agency; or
    53    (2)  Any  activity pursuant to a court order that specifically author-
    54  izes the use of caller identification manipulation.
    55    4-b. (a) A telephone service provider that provides telephone  service
    56  to customers residing in the state shall make call mitigation technology

        S. 3297--D                          4
 
     1  available  to  any  such  customer,  upon  request, and at no additional
     2  charge. Such provider shall also offer to any such customer the  ability
     3  to have the provider prevent calls and text messages identified as orig-
     4  inating  from  a  particular  person  from being completed to the called
     5  person, upon request, and at no additional charge.
     6    (b) The department, in consultation  with  the  department  of  public
     7  service,  shall  promulgate regulations to implement the requirements of
     8  this subdivision, including,  if  appropriate,  a  reasonable  delay  in
     9  requiring  implementation  and offering of call mitigation technology if
    10  for good cause, taking into account the consumer protection purposes  of
    11  this section, and including procedures for addressing incidents in which
    12  a  call  wanted by the customer is prevented from reaching the customer.
    13  The department may also promulgate regulations allowing for the require-
    14  ments of this subdivision to be waived for existing  network  facilities
    15  in  instances where the telephone service provider can reasonably demon-
    16  strate that call mitigation technology cannot feasibly be implemented on
    17  such facilities due to technological limitations, until such time as  it
    18  can be feasibly implemented.
    19    5.  No  [automatic dialing-announcing device shall be used to call and
    20  no] robocall or consumer telephone call shall be placed to an  emergency
    21  telephone  line  including  but not limited to any 911 or E-911 line, or
    22  any emergency line of any volunteer fire company or fire department; any
    23  emergency  medical  service,  ambulance  service,  voluntary   ambulance
    24  service  or hospital ambulance service as defined in section three thou-
    25  sand one of the public health law; any hospital, nursing home, or  resi-
    26  dential  health care facility as defined in section twenty-eight hundred
    27  one of the public health law; any adult  care  facility  as  defined  in
    28  section two of the social services law; or any law enforcement agency or
    29  to the telephone line of any guest room or patient room of any hospital,
    30  nursing  home, or residential health care facility as defined in section
    31  two thousand eight hundred one of the public health law,  or  any  adult
    32  care  facility  as defined by section two of the social services law. It
    33  shall not constitute a violation of this subdivision if the  person  who
    34  places  such a call can affirmatively establish that the call was placed
    35  inadvertently despite good faith efforts on the part of such  person  to
    36  comply  with  the  provisions of this section and such person has imple-
    37  mented a procedure to prevent subsequent calls from being  placed  to  a
    38  particular prohibited telephone number.
    39    6. A telephone solicitor shall not make a consumer telephone call to a
    40  consumer  unless  the telephone solicitor conforms with subparagraph one
    41  of paragraph b of subdivision six of section three hundred  ninety-nine-
    42  pp  of  this article. Nothing contained herein shall be deemed to limit,
    43  annul, alter, or affect the provisions  of  subdivision  three  of  this
    44  section.
    45    6-a.  No  telephone  solicitor or person who places any consumer tele-
    46  phone call or [who  operates  an  automatic  dialing-announcing  device]
    47  robocall and no employer of any such telephone solicitor or person shall
    48  intentionally cause to be installed, or shall intentionally utilize, any
    49  blocking  device  or service to prevent the name and/or telephone number
    50  of such solicitor or person, or the name and/or telephone number of  his
    51  or  her employer, from being displayed on a caller identification device
    52  of the recipient of any such consumer telephone  call.  A  violation  of
    53  this subdivision shall be subject to the provisions of subdivision eight
    54  of this section.
    55    7.  (a)  Federal,  state  or  local municipalities, or any subdivision
    56  thereof, [using an automatic dialing-announcing device] making  a  robo-

        S. 3297--D                          5
 
     1  call  for  emergency  purposes  shall be exempted from the provisions of
     2  this section.
     3    (b)  Notwithstanding  the provisions of paragraph (a) of this subdivi-
     4  sion, any entity  [which  operates]  making  a  robocall  for  emergency
     5  purposes  through  the  operation of a telephone warning or alert system
     6  [which utilizes any such device for emergency purposes]  shall  also  be
     7  exempted from the provisions of this section.
     8    8.  Whenever  there  shall  be  a violation of subdivision two, three,
     9  four, four-a, five, six, or six-a of this section, an application may be
    10  made by the attorney general in the name of the people of the  state  of
    11  New  York  to a court or justice having jurisdiction to issue an injunc-
    12  tion, and upon notice to the defendant of not less than  five  days,  to
    13  enjoin  and restrain the continuance of such violations; and if it shall
    14  appear to the satisfaction of the court or justice, that  the  defendant
    15  has,  in fact, violated subdivision two, three, four, four-a, five, six,
    16  or six-a of this section an injunction may be issued by  such  court  or
    17  justice enjoining and restraining any further violation, without requir-
    18  ing proof that any person has, in fact, been injured or damaged thereby.
    19  In  any  such  proceeding, the court may make allowances to the attorney
    20  general as provided in paragraph  six  of  subdivision  (a)  of  section
    21  eighty-three  hundred  three  of  the  civil practice law and rules, and
    22  direct restitution. Whenever the court shall determine that a  violation
    23  of  subdivision  two, three, four, or five of this section has occurred,
    24  the court may impose a civil penalty  of  not  more  than  two  thousand
    25  dollars  per  call,  up  to  a  total  of  not more than twenty thousand
    26  dollars, for calls placed in violation of  such  subdivisions  within  a
    27  continuous  seventy-two  hour period. Whenever the court shall determine
    28  that a violation of subdivision four-a of this section has occurred, the
    29  court may impose a civil penalty of not less than five thousand  dollars
    30  nor  more  than  ten  thousand  dollars for each violation. Whenever the
    31  court shall determine that  a  violation  of  subdivision  six  of  this
    32  section,  or  a  violation  of  subdivision  six-a  of this section, has
    33  occurred, the court may impose a civil penalty  of  not  more  than  two
    34  thousand  dollars. In connection with any such proposed application, the
    35  attorney general is authorized to take proof and make a determination of
    36  the relevant facts and to issue subpoenas in accordance with  the  civil
    37  practice law and rules.
    38    9.  In addition to the right of action granted to the attorney general
    39  pursuant to this section, any person who has received a  telephone  call
    40  in  violation  of  subdivision  two, three, four, four-a or five of this
    41  section may bring:
    42    (a) an action in his or her own name to enjoin such  unlawful  act  or
    43  practice[,];
    44    (b)  an  action  to  recover his or her actual damages or [fifty] five
    45  hundred dollars, whichever is greater[,]; or
    46    (c) both such actions. The court may, in its discretion, increase  the
    47  award  of  damages  to  an  amount not to exceed three times the [actual
    48  damages up to one thousand dollars] amount available under paragraph (b)
    49  of this subdivision, if the court finds the defendant willfully or know-
    50  ingly violated such subdivisions. The court [may] shall award reasonable
    51  attorney's fees to  a  prevailing  plaintiff.  Any  damages  recoverable
    52  pursuant  to  this  section may be recovered in any action which a court
    53  may authorize to be brought as a class action pursuant to  article  nine
    54  of the civil practice law and rules.
    55    10.  (a) The department, in consultation with the department of public
    56  service, shall report on issues related to  illegal  robocalls  made  to

        S. 3297--D                          6
 
     1  telephone  numbers owned by a person or entity in this state, and on the
     2  status of the implementation and offering of call mitigation  technology
     3  by telephone service providers that provide telephone service to custom-
     4  ers  residing in the state. Such report shall be delivered no later than
     5  December first, two thousand twenty, and  annually  thereafter,  to  the
     6  governor,  the  temporary  president  of  the senate, the speaker of the
     7  assembly, the minority leader of the senate, and the minority leader  of
     8  the assembly.
     9    (b) Such report shall include:
    10    (1) A list of telephone service providers operating in this state, and
    11  the status of their implementation and offering of call mitigation tech-
    12  nology;
    13    (2) Information regarding delays in the implementation and offering of
    14  call mitigation technology, and the reasons for such delays;
    15    (3)  Recommendations for additional measures to protect customers from
    16  illegal robocalls;
    17    (4) The number of illegal robocalls made to telephone numbers owned by
    18  a person or entity in this state, to the extent that such information is
    19  known; and
    20    (5) Any other information or recommendations relating to the issue  of
    21  robocalls that the department judges to be pertinent or necessary.
    22    §  3.  Paragraph  b of subdivision 11 of section 399-pp of the general
    23  business law, as added by chapter 546 of the laws of 2000, is amended to
    24  read as follows:
    25    b. In every case where the court shall determine that a  violation  of
    26  this  section  has  occurred,  it may impose a civil penalty of not less
    27  than one thousand dollars nor more than two thousand  dollars  for  each
    28  violation,  provided that for a violation of subdivision seven-a of this
    29  section, the court may impose a civil penalty  of  not  less  than  five
    30  thousand  dollars nor more than ten thousand dollars for each violation.
    31  Such penalty shall be in addition  to  the  denial  of  registration  or
    32  renewal,  suspension  of  registration  or revocation of registration or
    33  assessment of a fine authorized by subdivision five of this section.
    34    § 4. If any provision of this act, or any application of any provision
    35  of this act, is  held to be invalid, that shall not affect the  validity
    36  or  effectiveness  of  any  other provision of this act, or of any other
    37  application of any provision of this act,  which  can  be  given  effect
    38  without  that  provision or application; and to that end, the provisions
    39  and applications of this act are severable.
    40    § 5. This act shall take effect on the ninetieth day  after  it  shall
    41  have  become  a  law.    Effective  immediately, the addition, amendment
    42  and/or repeal of any rule or regulation necessary for the implementation
    43  of this act on its effective date are authorized and directed to be made
    44  and completed on or before such effective date.
Go to top