N.Y. General Business Law § 399-p: Telemarketing; use of automatic dialing-announcing devices and placement of consumer telephone calls

§ 399-p. Telemarketing; use of automatic dialing-announcing devices

and placement of consumer telephone calls. 1. Definitions. As used in

this section, the following terms shall have the following meanings:

(a) "automatic dialing-announcing device" means any automatic

equipment which incorporates a storage capability of telephone numbers

to be called and is used, working alone or in conjunction with other

equipment, to disseminate a prerecorded message to the telephone number

called without the use of an operator;

(b) "person" means any natural person, firm, organization,

partnership, association or corporation, or other entity, whether

for-profit or not-for-profit;

(c) "consumer" means a natural person who is solicited to purchase,

lease or receive a good or service for personal, family or household

use;

(d) "consumer telephone call" means a call made to a telephone number

by a telephone solicitor, whether by device, live operator, or any

combination thereof, for the purpose of soliciting a sale of any

consumer goods or services for personal, family or household purposes to

the consumer called, or for the purpose of soliciting an extension of

credit for consumer goods or services to the consumer called, or for the

purpose of obtaining information that will or may be used for the direct

solicitation of a sale of consumer goods or services to the consumer

called or an extension of credit for such purposes; provided, however,

that "consumer telephone call" shall not include a call made by a

telephone corporation, as defined by subdivision seventeen of section

two of the public service law, in response to a specific inquiry

initiated by a consumer regarding that consumer's existing or requested

telephone service; and

(e) "telephone solicitor" means a person who makes or causes to be

made a consumer telephone call.

2. No person shall operate an automatic dialing-announcing device, nor

place any consumer telephone call, except in accordance with the

provisions of this section. The use of such device by any person, either

individually or acting as an officer, agent, or employee of a person

operating automatic dialing-announcing devices, is subject to the

provisions of this section.

3. Whenever telephone calls are placed through the use of an automatic

dialing-announcing device, such device shall do all of the following:

(a) state at the beginning of the call the nature of the call and the

name of the person or on whose behalf the message is being transmitted

and at the end of such message the address, and telephone number of the

person on whose behalf the message is transmitted, provided such

disclosures are not otherwise prohibited or restricted by any federal,

state or local law; and

(b) disconnect the automatic dialing-announcing device from the

telephone line upon the termination of the call by either the person

calling or the person called.

4. No person shall operate an automatic dialing-announcing device

which uses a random or sequential number generator to produce a number

to be called.

5. No automatic dialing-announcing device shall be used to call and no

consumer telephone call shall be placed to an emergency telephone line

including but not limited to any 911 or E-911 line, or any emergency

line of any volunteer fire company or fire department; any emergency

medical service, ambulance service, voluntary ambulance service or

hospital ambulance service as defined in section three thousand one of

the public health law; any hospital, nursing home, or residential health

care facility as defined in section twenty-eight hundred one of the

public health law; any adult care facility as defined in section two of

the social services law; or any law enforcement agency or to the

telephone line of any guest room or patient room of any hospital,

nursing home, or residential health care facility as defined in section

two thousand eight hundred one of the public health law, or any adult

care facility as defined by section two of the social services law. It

shall not constitute a violation of this subdivision if the person who

places such a call can affirmatively establish that the call was placed

inadvertently despite good faith efforts on the part of such person to

comply with the provisions of this section and such person has

implemented a procedure to prevent subsequent calls from being placed to

a particular prohibited telephone number.

6. A telephone solicitor shall not make a consumer telephone call to a

consumer unless the telephone solicitor conforms with subparagraph one

of paragraph b of subdivision six of section three hundred

ninety-nine-pp of this article. Nothing contained herein shall be deemed

to limit, annul, alter, or affect the provisions of subdivision three of

this section.

6-a. No telephone solicitor or person who places any consumer

telephone call or who operates an automatic dialing-announcing device

and no employer of any such telephone solicitor or person shall

intentionally cause to be installed, or shall intentionally utilize, any

blocking device or service to prevent the name and/or telephone number

of such solicitor or person, or the name and/or telephone number of his

or her employer, from being displayed on a caller identification device

of the recipient of any such consumer telephone call. A violation of

this subdivision shall be subject to the provisions of subdivision eight

of this section.

7. (a) Federal, state or local municipalities, or any subdivision

thereof, using an automatic dialing-announcing device for emergency

purposes shall be exempted from the provisions of this section.

(b) Notwithstanding the provisions of paragraph (a) of this

subdivision, any entity which operates a telephone warning or alert

system which utilizes any such device for emergency purposes shall also

be exempted from the provisions of this section.

8. Whenever there shall be a violation of this section, an application

may be made by the attorney general in the name of the people of the

state of New York to a court or justice having jurisdiction to issue an

injunction, and upon notice to the defendant of not less than five days,

to enjoin and restrain the continuance of such violations; and if it

shall appear to the satisfaction of the court or justice, that the

defendant has, in fact, violated this section an injunction may be

issued by such court or justice enjoining and restraining any further

violation, without requiring proof that any person has, in fact, been

injured or damaged thereby. In any such proceeding, the court may make

allowances to the attorney general as provided in paragraph six of

subdivision (a) of section eighty-three hundred three of the civil

practice law and rules, and direct restitution. Whenever the court shall

determine that a violation of subdivision three, four or five of this

section has occurred, the court may impose a civil penalty of not more

than two thousand dollars per call, up to a total of not more than

twenty thousand dollars, for calls placed in violation of such

subdivisions within a continuous seventy-two hour period. Whenever the

court shall determine that a violation of subdivision six of this

section, or a violation of subdivision six-a of this section, has

occurred, the court may impose a civil penalty of not more than two

thousand dollars. In connection with any such proposed application, the

attorney general is authorized to take proof and make a determination of

the relevant facts and to issue subpoenas in accordance with the civil

practice law and rules.

9. In addition to the right of action granted to the attorney general

pursuant to this section, any person who has received a telephone call

in violation of subdivision three, four or five of this section may

bring an action in his own name to enjoin such unlawful act or practice,

an action to recover his actual damages or fifty dollars, whichever is

greater, or both such actions. The court may, in its discretion,

increase the award of damages to an amount not to exceed three times the

actual damages up to one thousand dollars, if the court finds the

defendant willfully or knowingly violated such subdivisions. The court

may award reasonable attorney's fees to a prevailing plaintiff.