|SAME AS||SAME AS A00675-D|
|COSPNSR||CARLUCCI, 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|
|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 ________________________________________________________________________ 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 telephone13 numbers to be called and is used, working alone or in conjunction withEXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02262-26-9S. 3297--D 2 1 other equipment, to disseminate a prerecorded message to the telephone2 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 technologyS. 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 and20 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 [ actual48 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 toS. 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.