N.Y. General Business Law § 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

statewide registry; authorization of the transfer of telephone numbers

on the no telemarketing sales calls statewide registry to the national

"do-not-call" registry. 1. As used in this section, the following terms

shall have the following meanings:

a. "Department" shall mean the department of state.

b. "Secretary" shall mean the secretary of state.

c. "Customer" means any natural person who is a resident of this state

and who is or may be required to pay for or to exchange consideration

for goods and services offered through telemarketing;

d. "Doing business in this state" means conducting telephonic sales

calls: (i) from a location in this state; or (ii) from a location

outside of this state to consumers residing in this state;

e. "Goods and services" means any goods and services, and shall

include any real property or any tangible personal property or services

of any kind;

f. "Negative option feature" means, in an offer or agreement to sell

or provide any goods or services, a provision under which the customer's

silence or failure to take an affirmative action to reject such goods or

services or to cancel the agreement is interpreted by the seller as

acceptance of the offer.

g. "Person" means any natural person, association, partnership, firm,

corporation and its affiliates or subsidiaries or other business entity;

h. "Telemarketer" means any person who, for financial profit or

commercial purposes in connection with telemarketing, makes

telemarketing sales calls or electronic messaging texts to a customer

when the customer is in this state or any person who directly controls

or supervises the conduct of a telemarketer. For the purposes of this

section, "commercial purposes" shall mean the sale or offer for sale of

goods or services;

i. "Telemarketing" means any plan, program or campaign that is

conducted to induce payment or the exchange of any other consideration

for any goods or services that involves more than one telephone call or

electronic messaging text by a telemarketer in which the customer is

located within the state at the time of the call. Telemarketing does not

include the solicitation of sales through media other than by telephone

calls or electronic messaging texts and does not include calls or

electronic messaging texts intended to implement or complete a

transaction to which the customer has previously consented;

j. "Telemarketing sales call" means a telephone call or electronic

messaging text made directly or indirectly by a telemarketer or by any

outbound telephone calling technology that delivers a prerecorded

message to a customer or to a customer's voicemail or answering machine

service, in which such telephone call or electronic messaging text is

for the purpose of inducing payment or the exchange of any other

consideration for any goods or services;

k. "Unsolicited telemarketing sales call" means any telemarketing

sales call or electronic messaging text other than:

(i) in response to an express written or verbal request by the

customer; or

(ii) in connection with an established business relationship, which

has not been terminated by either party, unless such customer has stated

to the telemarketer that such customer no longer wishes to receive the

telemarketing sales calls of such telemarketer;

l. "Caller identification information" means information provided by a

caller identification service regarding the telephone number and name of

the person calling;

m. "Caller identification service" means a service that allows a

telephone subscriber to have the telephone number, and, where available,

name of the calling party transmitted contemporaneously with the

telephone call, and displayed on a device in or connected to the

subscriber's telephone; and

n. "Electronic messaging text" means real-time or near real-time

non-voice messages in text form over communications networks, and

includes the transmission of writing, signs, signals, pictures, and

sounds of all kinds by aid of wire, cable or other like connection

between the points of origin and reception of such transmission.

2. No telemarketer or seller shall engage in telemarketing at any time

other than between 8:00 A.M. and 9:00 P.M. at the location of the

customer unless the customer has given their express consent to the call

at a different time. Telemarketers shall provide, in a clear and

coherent manner using words with common and everyday meanings, at the

beginning but no later than thirty seconds from the commencement of the

call of each telemarketing sales call all of the following information,

provided that the information set forth in paragraphs a and b of this

subdivision shall be given to the customer first:

a. the telemarketer's name and the person on whose behalf the

solicitation is being made, if other than the telemarketer;

b. the option to be automatically added to the seller's entity

specific do-not-call list, as required by subdivisions seven, eight, and

nine of this section;

c. whether the call is being recorded;

d. the purpose of the telephone call; and

e. the identity of the goods or services for which a fee will be

charged.

2-a. It shall be unlawful for any telemarketer or seller to knowingly

cause any caller identification service to transmit misleading,

inaccurate, or false caller identification information, provided that it

shall not be a violation to substitute (for the name and phone number

used in, or billed for, making the call) the name or telephone number of

the person or seller on behalf of which a telemarketing call is placed.

3. Prior to the purchase of any good or service, telemarketers shall

disclose to the customer the cost of the goods or services that are the

subject of the call and if the offer includes a negative option feature,

all material terms and conditions of the negative option feature,

including, but not limited to the fact that the customer's account will

be charged unless the customer takes an affirmative action to avoid the

charges, the dates the charges will be submitted for payment, and the

specific steps the customer must take to avoid the charge.

4. a. The department is authorized to establish, manage, and maintain

a no telemarketing sales calls statewide registry which shall contain a

list of customers who do not wish to receive unsolicited telemarketing

sales calls. The department may contract with a private vendor to

establish, manage and maintain such registry, provided the private

vendor has maintained national no telemarketing sales calls registries

for more than two years, and the contract requires the vendor to provide

the no telemarketing sales calls registry in a printed hard copy format

and in any other format as prescribed by the department.

b. The department is authorized to have the national "do-not-call"

registry established, managed and maintained by the federal trade

commission pursuant to 16 C.F.R. Section 310.4 (b) (1) (iii) (B) serve

as the New York state no telemarketing sales calls statewide registry

provided for by this section. The department is further authorized to

take whatever administrative actions may be necessary or appropriate for

such transition including, but not limited to, providing the telephone

numbers of New York customers registered on the no telemarketing sales

calls statewide registry to the federal trade commission, for inclusion

on the national "do-not-call" registry.

5. No telemarketer or seller may make or cause to be made any

unsolicited telemarketing sales call to any customer when that

customer's telephone number has been on the national "do-not-call"

registry, established by the federal trade commission, for a period of

thirty-one days prior to the date the call is made, pursuant to 16

C.F.R. Section 310.4(b)(1)(iii)(B).

5-a. It shall be unlawful for any telemarketer doing business in this

state to knowingly make an unsolicited telemarketing sales call to any

person in a county, city, town or village under a declared state of

emergency or disaster emergency as described in sections twenty-four or

twenty-eight of the executive law.

6. No telemarketer or seller shall initiate any telemarketing sales

call by means of a technology that delivers a pre-recorded message,

unless the telemarketer or seller has obtained from the customer an

express agreement, in writing that:

a. the telemarketer or seller obtained only after a clear and

conspicuous disclosure that the purpose of the agreement is to authorize

the seller to make telemarketing sales calls to such customer;

b. the telemarketer or seller obtained without requiring, directly or

indirectly, that the agreement be executed as a condition of purchasing

any good or service;

c. evidences the willingness of the customer to receive telemarketing

sales calls by or made on behalf of a specific seller; and,

d. includes such customer's telephone number and signature.

7. In the case of any telemarketing sales call delivered by means of a

technology that delivers a pre-recorded message that could be received

by a customer who can use an automated interactive voice and/or keypress

activated opt-out mechanism to assert a do-not-call request, such call

shall include a mechanism that allows the customer to automatically add

the number called to the seller's entity specific do-not-call list, and

which mechanism, once invoked, immediately ends the call.

8. In the case of any telemarketing sales call delivered by means of a

technology that delivers a pre-recorded message that could be answered

by an answering machine or voicemail service, that the call include a

toll-free number that must connect the customer directly to an automated

interactive voice or keypress activated opt-out mechanism that allows

the consumer to automatically add the number called to the seller's

entity specific do-not-call list, and which mechanism, once invoked,

immediately ends the call.

9. In the case of any telemarketing sales call made by a natural

person, the telemarketer or seller shall inform the customer that he or

she may request that his or her telephone number be added to the

seller's entity specific do-not-call list. If the customer opts to do

so, the telemarketer or seller shall immediately end the call and shall

add the number called to such list or cause the number called to be

added to such list.

10. No telemarketer or seller shall transmit, share, or otherwise make

available any customer's contact information, including name, telephone

number, or email address, which has been provided to such telemarketer

or seller by such customer, to any person, corporation, or other entity

without the express agreement of the consumer in writing or in

electronic format, unless otherwise required by law, or pursuant to a

lawful subpoena or court order.

11. Telemarketers and sellers shall keep for a period of twenty-four

months from the date the record is created records relating to its

telemarketing activities.

12. a. The department shall provide notice to customers of the

establishment of the national "do-not-call" registry. Any customer who

wishes to be included on such registry shall notify the federal trade

commission as directed by relevant federal regulations.

b. Any company that provides local telephone directories to customers

in this state shall inform its customers of the provisions of this

section by means of publishing a notice in such local telephone

directories.

13. When the department has reason to believe a telemarketer has

engaged in repeated unlawful acts in violation of this section, or when

a notice of hearing has been issued pursuant to subdivision fourteen of

this section, the department may request in writing the production of

relevant documents and records as part of its investigation. If the

person upon whom such request was made fails to produce the documents or

records within thirty days after the date of the request, the department

may issue and serve subpoenas to compel the production of such documents

and records. If any person shall refuse to comply with a subpoena issued

under this section, the department may petition a court of competent

jurisdiction to enforce the subpoena and such sanctions as the court may

direct.

14. a. Where it is determined after hearing that any person has

violated one or more provisions of this section, the secretary, or any

person deputized or so designated by him or her may assess a fine not to

exceed twenty thousand dollars for each violation.

b. Any proceeding conducted pursuant to paragraph a of this

subdivision shall be subject to the state administrative procedure act.

c. Nothing in this subdivision shall be construed to restrict any

right which any person may have under any other statute or at common

law.

15. A person shall not be held liable for violating this section if:

a. the person has obtained a version of the "do-not-call" registry

from the federal trade commission no more than thirty-one days prior to

the date any telemarketing call is made, pursuant to 16 C.F.R. Section

310.4(b)(1)(iii)(B), and the person can demonstrate that, as part of the

person's routine business practice at the time of an alleged violation,

it has established, implemented and updated written policies and

procedures related to the requirements of this section prior to the date

any telemarketing call is made;

b. the person has trained his or her personnel in the requirements of

this section; and

c. the person maintains and can produce records demonstrating

compliance with paragraphs a and b of this subdivision and the

requirements of this section.

16. The department shall prescribe rules and regulations to administer

this section.

17. Severability. If any clause, sentence, paragraph or part of this

section shall be adjudged by any court of competent jurisdiction to be

invalid, such judgment shall not affect, impair or invalidate the

remainder thereof, but shall be confined in its operation to the clause,

sentence, paragraph or part thereof directly involved in the controversy

in which such judgment shall have been rendered.