§ 399-Z — Telemarketing; establishment of no telemarketing sales calls statewide registry; authorization of the transfer of telephone numbers on th...

§ 399-z. Telemarketing; establishment of no telemarketing sales calls\nstatewide registry; authorization of the transfer of telephone numbers\non the no telemarketing sales calls statewide registry to the national\n"do-not-call" registry. 1. As used in this section, the following terms\nshall have the following meanings:\n a. "Department" shall mean the department of state.\n b. "Secretary" shall mean the secretary of state.\n c. "Customer" means any natural person who is a resident of this state\nand who is or may be required to pay for or to exchange consideration\nfor goods and services offered through telemarketing;\n d. "Doing business in this state" means conducting telephonic sales\ncalls: (i) from a location in this state; or (ii) from a location\noutside of this state to consumers residing in this state;\n e. "Goods and services" means any goods and services, and shall\ninclude any real property or any tangible personal property or services\nof any kind;\n f. "Negative option feature" means, in an offer or agreement to sell\nor provide any goods or services, a provision under which the customer's\nsilence or failure to take an affirmative action to reject such goods or\nservices or to cancel the agreement is interpreted by the seller as\nacceptance of the offer.\n g. "Person" means any natural person, association, partnership, firm,\ncorporation and its affiliates or subsidiaries or other business entity;\n h. "Telemarketer" means any person who, for financial profit or\ncommercial purposes in connection with telemarketing, makes\ntelemarketing sales calls or electronic messaging texts to a customer\nwhen the customer is in this state or any person who directly controls\nor supervises the conduct of a telemarketer. For the purposes of this\nsection, "commercial purposes" shall mean the sale or offer for sale of\ngoods or services;\n i. "Telemarketing" means any plan, program or campaign that is\nconducted to induce payment or the exchange of any other consideration\nfor any goods or services that involves more than one telephone call or\nelectronic messaging text by a telemarketer in which the customer is\nlocated within the state at the time of the call. Telemarketing does not\ninclude the solicitation of sales through media other than by telephone\ncalls or electronic messaging texts and does not include calls or\nelectronic messaging texts intended to implement or complete a\ntransaction to which the customer has previously consented;\n j. "Telemarketing sales call" means a telephone call or electronic\nmessaging text made directly or indirectly by a telemarketer or by any\noutbound telephone calling technology that delivers a prerecorded\nmessage to a customer or to a customer's voicemail or answering machine\nservice, in which such telephone call or electronic messaging text is\nfor the purpose of inducing payment or the exchange of any other\nconsideration for any goods or services;\n k. "Unsolicited telemarketing sales call" means any telemarketing\nsales call or electronic messaging text other than:\n (i) in response to an express written or verbal request by the\ncustomer; or\n (ii) in connection with an established business relationship, which\nhas not been terminated by either party, unless such customer has stated\nto the telemarketer that such customer no longer wishes to receive the\ntelemarketing sales calls of such telemarketer;\n l. "Caller identification information" means information provided by a\ncaller identification service regarding the telephone number and name of\nthe person calling;\n m. "Caller identification service" means a service that allows a\ntelephone subscriber to have the telephone number, and, where available,\nname of the calling party transmitted contemporaneously with the\ntelephone call, and displayed on a device in or connected to the\nsubscriber's telephone; and\n n. "Electronic messaging text" means real-time or near real-time\nnon-voice messages in text form over communications networks, and\nincludes the transmission of writing, signs, signals, pictures, and\nsounds of all kinds by aid of wire, cable or other like connection\nbetween the points of origin and reception of such transmission.\n 2. No telemarketer or seller shall engage in telemarketing at any time\nother than between 8:00 A.M. and 9:00 P.M. at the location of the\ncustomer unless the customer has given their express consent to the call\nat a different time. Telemarketers shall provide, in a clear and\ncoherent manner using words with common and everyday meanings, at the\nbeginning but no later than thirty seconds from the commencement of the\ncall of each telemarketing sales call all of the following information,\nprovided that the information set forth in paragraphs a and b of this\nsubdivision shall be given to the customer first:\n a. the telemarketer's name and the person on whose behalf the\nsolicitation is being made, if other than the telemarketer;\n b. the option to be automatically added to the seller's entity\nspecific do-not-call list, as required by subdivisions seven, eight, and\nnine of this section;\n c. whether the call is being recorded;\n d. the purpose of the telephone call; and\n e. the identity of the goods or services for which a fee will be\ncharged.\n 2-a. It shall be unlawful for any telemarketer or seller to knowingly\ncause any caller identification service to transmit misleading,\ninaccurate, or false caller identification information, provided that it\nshall not be a violation to substitute (for the name and phone number\nused in, or billed for, making the call) the name or telephone number of\nthe person or seller on behalf of which a telemarketing call is placed.\n 3. Prior to the purchase of any good or service, telemarketers shall\ndisclose to the customer the cost of the goods or services that are the\nsubject of the call and if the offer includes a negative option feature,\nall material terms and conditions of the negative option feature,\nincluding, but not limited to the fact that the customer's account will\nbe charged unless the customer takes an affirmative action to avoid the\ncharges, the dates the charges will be submitted for payment, and the\nspecific steps the customer must take to avoid the charge.\n 4. a. The department is authorized to establish, manage, and maintain\na no telemarketing sales calls statewide registry which shall contain a\nlist of customers who do not wish to receive unsolicited telemarketing\nsales calls. The department may contract with a private vendor to\nestablish, manage and maintain such registry, provided the private\nvendor has maintained national no telemarketing sales calls registries\nfor more than two years, and the contract requires the vendor to provide\nthe no telemarketing sales calls registry in a printed hard copy format\nand in any other format as prescribed by the department.\n b. The department is authorized to have the national "do-not-call"\nregistry established, managed and maintained by the federal trade\ncommission pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve\nas the New York state no telemarketing sales calls statewide registry\nprovided for by this section. The department is further authorized to\ntake whatever administrative actions may be necessary or appropriate for\nsuch transition including, but not limited to, providing the telephone\nnumbers of New York customers registered on the no telemarketing sales\ncalls statewide registry to the federal trade commission, for inclusion\non the national "do-not-call" registry.\n 5. No telemarketer or seller may make or cause to be made any\nunsolicited telemarketing sales call to any customer when that\ncustomer's telephone number has been on the national "do-not-call"\nregistry, established by the federal trade commission, for a period of\nthirty-one days prior to the date the call is made, pursuant to 16\nC.F.R. Section 310.4(b)(1)(iii)(B).\n 5-a. It shall be unlawful for any telemarketer doing business in this\nstate to knowingly make an unsolicited telemarketing sales call to any\nperson in a county, city, town or village under a declared state of\nemergency or disaster emergency as described in sections twenty-four or\ntwenty-eight of the executive law.\n 6. No telemarketer or seller shall initiate any telemarketing sales\ncall by means of a technology that delivers a pre-recorded message,\nunless the telemarketer or seller has obtained from the customer an\nexpress agreement, in writing that:\n a. the telemarketer or seller obtained only after a clear and\nconspicuous disclosure that the purpose of the agreement is to authorize\nthe seller to make telemarketing sales calls to such customer;\n b. the telemarketer or seller obtained without requiring, directly or\nindirectly, that the agreement be executed as a condition of purchasing\nany good or service;\n c. evidences the willingness of the customer to receive telemarketing\nsales calls by or made on behalf of a specific seller; and,\n d. includes such customer's telephone number and signature.\n 7. In the case of any telemarketing sales call delivered by means of a\ntechnology that delivers a pre-recorded message that could be received\nby a customer who can use an automated interactive voice and/or keypress\nactivated opt-out mechanism to assert a do-not-call request, such call\nshall include a mechanism that allows the customer to automatically add\nthe number called to the seller's entity specific do-not-call list, and\nwhich mechanism, once invoked, immediately ends the call.\n 8. In the case of any telemarketing sales call delivered by means of a\ntechnology that delivers a pre-recorded message that could be answered\nby an answering machine or voicemail service, that the call include a\ntoll-free number that must connect the customer directly to an automated\ninteractive voice or keypress activated opt-out mechanism that allows\nthe consumer to automatically add the number called to the seller's\nentity specific do-not-call list, and which mechanism, once invoked,\nimmediately ends the call.\n 9. In the case of any telemarketing sales call made by a natural\nperson, the telemarketer or seller shall inform the customer that he or\nshe may request that his or her telephone number be added to the\nseller's entity specific do-not-call list. If the customer opts to do\nso, the telemarketer or seller shall immediately end the call and shall\nadd the number called to such list or cause the number called to be\nadded to such list.\n 10. No telemarketer or seller shall transmit, share, or otherwise make\navailable any customer's contact information, including name, telephone\nnumber, or email address, which has been provided to such telemarketer\nor seller by such customer, to any person, corporation, or other entity\nwithout the express agreement of the consumer in writing or in\nelectronic format, unless otherwise required by law, or pursuant to a\nlawful subpoena or court order.\n 11. Telemarketers and sellers shall keep for a period of twenty-four\nmonths from the date the record is created records relating to its\ntelemarketing activities.\n 12. a. The department shall provide notice to customers of the\nestablishment of the national "do-not-call" registry. Any customer who\nwishes to be included on such registry shall notify the federal trade\ncommission as directed by relevant federal regulations.\n b. Any company that provides local telephone directories to customers\nin this state shall inform its customers of the provisions of this\nsection by means of publishing a notice in such local telephone\ndirectories.\n 13. When the department has reason to believe a telemarketer has\nengaged in repeated unlawful acts in violation of this section, or when\na notice of hearing has been issued pursuant to subdivision fourteen of\nthis section, the department may request in writing the production of\nrelevant documents and records as part of its investigation. If the\nperson upon whom such request was made fails to produce the documents or\nrecords within thirty days after the date of the request, the department\nmay issue and serve subpoenas to compel the production of such documents\nand records. If any person shall refuse to comply with a subpoena issued\nunder this section, the department may petition a court of competent\njurisdiction to enforce the subpoena and such sanctions as the court may\ndirect.\n 14. a. Where it is determined after hearing that any person has\nviolated one or more provisions of this section, the secretary, or any\nperson deputized or so designated by him or her may assess a fine not to\nexceed twenty thousand dollars for each violation.\n b. Any proceeding conducted pursuant to paragraph a of this\nsubdivision shall be subject to the state administrative procedure act.\n c. Nothing in this subdivision shall be construed to restrict any\nright which any person may have under any other statute or at common\nlaw.\n 15. A person shall not be held liable for violating this section if:\n a. the person has obtained a version of the "do-not-call" registry\nfrom the federal trade commission no more than thirty-one days prior to\nthe date any telemarketing call is made, pursuant to 16 C.F.R. Section\n310.4(b)(1)(iii)(B), and the person can demonstrate that, as part of the\nperson's routine business practice at the time of an alleged violation,\nit has established, implemented and updated written policies and\nprocedures related to the requirements of this section prior to the date\nany telemarketing call is made;\n b. the person has trained his or her personnel in the requirements of\nthis section; and\n c. the person maintains and can produce records demonstrating\ncompliance with paragraphs a and b of this subdivision and the\nrequirements of this section.\n 16. The department shall prescribe rules and regulations to administer\nthis section.\n 17. Severability. If any clause, sentence, paragraph or part of this\nsection shall be adjudged by any court of competent jurisdiction to be\ninvalid, such judgment shall not affect, impair or invalidate the\nremainder thereof, but shall be confined in its operation to the clause,\nsentence, paragraph or part thereof directly involved in the controversy\nin which such judgment shall have been rendered.\n