2023 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, 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.