NY Gen Bus L § 399-Z (2021)
2021 New York Laws GBS - General Business Article 26 - Miscellaneous 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.

§  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 his or her 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  of  each  telemarketing  sales  call  all  of  the  following information:   a.  the  telemarketer's  name  and  the  person  on  whose  behalf the solicitation is being made, if other than the telemarketer;   b. the purpose of the telephone call;   c. the identity of the goods or services  for  which  a  fee  will  be charged; and   d. whether the call is being recorded.   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 eleven 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.