§ 399-P — Telemarketing; use of automatic dialing-announcing devices and placement of consumer telephone calls

§ 399-p. Telemarketing; use of automatic dialing-announcing devices\nand placement of consumer telephone calls. 1. Definitions. As used in\nthis section, the following terms shall have the following meanings:\n (a) "automatic dialing-announcing device" means any automatic\nequipment which incorporates a storage capability of telephone numbers\nto be called and is used, working alone or in conjunction with other\nequipment, to disseminate a prerecorded message to the telephone number\ncalled without the use of an operator;\n (b) "person" means any natural person, firm, organization,\npartnership, association or corporation, or other entity, whether\nfor-profit or not-for-profit;\n (c) "consumer" means a natural person who is solicited to purchase,\nlease or receive a good or service for personal, family or household\nuse;\n (d) "consumer telephone call" means a call made to a telephone number\nby a telephone solicitor, whether by device, live operator, or any\ncombination thereof, for the purpose of soliciting a sale of any\nconsumer goods or services for personal, family or household purposes to\nthe consumer called, or for the purpose of soliciting an extension of\ncredit for consumer goods or services to the consumer called, or for the\npurpose of obtaining information that will or may be used for the direct\nsolicitation of a sale of consumer goods or services to the consumer\ncalled or an extension of credit for such purposes; provided, however,\nthat "consumer telephone call" shall not include a call made by a\ntelephone corporation, as defined by subdivision seventeen of section\ntwo of the public service law, in response to a specific inquiry\ninitiated by a consumer regarding that consumer's existing or requested\ntelephone service; and\n (e) "telephone solicitor" means a person who makes or causes to be\nmade a consumer telephone call.\n 2. No person shall operate an automatic dialing-announcing device, nor\nplace any consumer telephone call, except in accordance with the\nprovisions of this section. The use of such device by any person, either\nindividually or acting as an officer, agent, or employee of a person\noperating automatic dialing-announcing devices, is subject to the\nprovisions of this section.\n 3. Whenever telephone calls are placed through the use of an automatic\ndialing-announcing device, such device shall do all of the following:\n (a) state at the beginning of the call the nature of the call and the\nname of the person or on whose behalf the message is being transmitted\nand at the end of such message the address, and telephone number of the\nperson on whose behalf the message is transmitted, provided such\ndisclosures are not otherwise prohibited or restricted by any federal,\nstate or local law; and\n (b) disconnect the automatic dialing-announcing device from the\ntelephone line upon the termination of the call by either the person\ncalling or the person called.\n 4. No person shall operate an automatic dialing-announcing device\nwhich uses a random or sequential number generator to produce a number\nto be called.\n 5. No automatic dialing-announcing device shall be used to call and no\nconsumer telephone call shall be placed to an emergency telephone line\nincluding but not limited to any 911 or E-911 line, or any emergency\nline of any volunteer fire company or fire department; any emergency\nmedical service, ambulance service, voluntary ambulance service or\nhospital ambulance service as defined in section three thousand one of\nthe public health law; any hospital, nursing home, or residential health\ncare facility as defined in section twenty-eight hundred one of the\npublic health law; any adult care facility as defined in section two of\nthe social services law; or any law enforcement agency or to the\ntelephone line of any guest room or patient room of any hospital,\nnursing home, or residential health care facility as defined in section\ntwo thousand eight hundred one of the public health law, or any adult\ncare facility as defined by section two of the social services law. It\nshall not constitute a violation of this subdivision if the person who\nplaces such a call can affirmatively establish that the call was placed\ninadvertently despite good faith efforts on the part of such person to\ncomply with the provisions of this section and such person has\nimplemented a procedure to prevent subsequent calls from being placed to\na particular prohibited telephone number.\n 6. A telephone solicitor shall not make a consumer telephone call to a\nconsumer unless the telephone solicitor conforms with subparagraph one\nof paragraph b of subdivision six of section three hundred\nninety-nine-pp of this article. Nothing contained herein shall be deemed\nto limit, annul, alter, or affect the provisions of subdivision three of\nthis section.\n 6-a. No telephone solicitor or person who places any consumer\ntelephone call or who operates an automatic dialing-announcing device\nand no employer of any such telephone solicitor or person shall\nintentionally cause to be installed, or shall intentionally utilize, any\nblocking device or service to prevent the name and/or telephone number\nof such solicitor or person, or the name and/or telephone number of his\nor her employer, from being displayed on a caller identification device\nof the recipient of any such consumer telephone call. A violation of\nthis subdivision shall be subject to the provisions of subdivision eight\nof this section.\n 7. (a) Federal, state or local municipalities, or any subdivision\nthereof, using an automatic dialing-announcing device for emergency\npurposes shall be exempted from the provisions of this section.\n (b) Notwithstanding the provisions of paragraph (a) of this\nsubdivision, any entity which operates a telephone warning or alert\nsystem which utilizes any such device for emergency purposes shall also\nbe exempted from the provisions of this section.\n 8. Whenever there shall be a violation of this section, an application\nmay be made by the attorney general in the name of the people of the\nstate of New York to a court or justice having jurisdiction to issue an\ninjunction, and upon notice to the defendant of not less than five days,\nto enjoin and restrain the continuance of such violations; and if it\nshall appear to the satisfaction of the court or justice, that the\ndefendant has, in fact, violated this section an injunction may be\nissued by such court or justice enjoining and restraining any further\nviolation, without requiring proof that any person has, in fact, been\ninjured or damaged thereby. In any such proceeding, the court may make\nallowances to the attorney general as provided in paragraph six of\nsubdivision (a) of section eighty-three hundred three of the civil\npractice law and rules, and direct restitution. Whenever the court shall\ndetermine that a violation of subdivision three, four or five of this\nsection has occurred, the court may impose a civil penalty of not more\nthan two thousand dollars per call, up to a total of not more than\ntwenty thousand dollars, for calls placed in violation of such\nsubdivisions within a continuous seventy-two hour period. Whenever the\ncourt shall determine that a violation of subdivision six of this\nsection, or a violation of subdivision six-a of this section, has\noccurred, the court may impose a civil penalty of not more than two\nthousand dollars. In connection with any such proposed application, the\nattorney general is authorized to take proof and make a determination of\nthe relevant facts and to issue subpoenas in accordance with the civil\npractice law and rules.\n 9. In addition to the right of action granted to the attorney general\npursuant to this section, any person who has received a telephone call\nin violation of subdivision three, four or five of this section may\nbring an action in his own name to enjoin such unlawful act or practice,\nan action to recover his actual damages or fifty dollars, whichever is\ngreater, or both such actions. The court may, in its discretion,\nincrease the award of damages to an amount not to exceed three times the\nactual damages up to one thousand dollars, if the court finds the\ndefendant willfully or knowingly violated such subdivisions. The court\nmay award reasonable attorney's fees to a prevailing plaintiff.\n