New York Telemarketing
NY Gen. Bus. Law § 399-P, § 399-PP, § 399-Z
New York Laws
GBS - General Business
Article 26 - MISCELLANEOUS
399-P - Telemarketing; use of automatic dialing-announcing devices and placement of consumer telephone calls.
399-PP - Telemarketing and consumer fraud and abuse prevention act.
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-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.
§ 399-pp. Telemarketing and consumer fraud and abuse prevention act.
1. Legislative findings and declaration. The legislature finds and declares that the prevention of deceptive and unfair practices in association with telemarketing is in the public interest and subject to the authority of appropriate political subdivisions of the state for the purpose of protecting the public against fraud, deception and other abuses. The legislature intends that the federal telemarketing and consumer fraud and abuse prevention act (P.L. 103-297) be fully enforceable by appropriate state and local enforcement officials.
The legislature further declares that additional requirements applicable to the telemarketing industry not present in the federal statute are necessary to protect residents of the state and others from telemarketing abuses. The legislature therefore intends that provisions in this section which differ from the aforementioned federal act and other New York state laws regulating telemarketing be construed whenever reasonable as providing additional protections to victims of telemarketing fraud.
2. Definitions. As used in this section, the following terms shall have the following meanings:
a. "Applicant" means a person seeking a certificate of registration or to renew a certificate of registration under this section.
b. "Customer" means any person who is or may be required to pay for or to exchange consideration for goods and services offered through telemarketing.
c. "Goods or services" means any goods or services, and shall include any real property or any tangible or intangible personal property or services of any kind.
d. "Investment opportunity" means anything tangible or intangible, that is offered for sale, sold, or traded based wholly or in part on representations, either express or implied, about past, present, or future income, profit, or appreciation.
e. "Person" means any natural person, association, partnership, firm, corporation and its affiliates or subsidiaries or other business entity.
f. "Premium" means anything offered or given, independent of chance, to customers as an incentive to purchase or otherwise contract for goods or services offered through telemarketing.
g. "Principal" means any person participating in or responsible for the management of a telemarketer's business, whether or not the position is compensated, including but not limited to an owner in the case of a sole proprietorship, an officer, director or stockholder holding more than ten percent of the outstanding stock in the case of a corporation, a partner in the case of a partnership, and a manager or member in the case of a limited liability company.
h. "Prize" means anything offered or purportedly offered and given or purportedly given to a person by chance. For purposes of this definition, chance exists if a person is guaranteed to receive an item and, at the time of the offer or purported offer, the telemarketer does not identify the specific item that the person will receive.
i. "Prize promotion" means a sweepstakes or other game of chance or an oral or written, express or implied representation that a person has won, has been selected to receive or is eligible or may be eligible to receive a prize or purported prize.
j. "Telemarketer" means any person, who, for financial profit or commercial purposes in connection with telemarketing, either initiates, or initiates and receives telephone calls to or from 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 and services.
k. "Telemarketing" means any plan, program or campaign which is conducted to induce payment or the exchange of any other consideration for any goods or services by use of one or more telephones and which involves more than one telephone call 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 any media other than by telephone calls.
l. "Secretary" shall mean the secretary of state.
m. "Department" shall mean the department of state.
n. "Caller identification information" means information provided by a caller identification service regarding the telephone number and name of the person calling.
o. "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.
3. Registration of telemarketers. a. No person shall act as a telemarketer without first having received a certificate of registration from the secretary as provided in this section. Employees of telemarketers shall be exempt from the requirements of this paragraph and paragraph b of this subdivision.
b. No person required to register pursuant to paragraph a of this subdivision shall act as a telemarketer without holding a valid certificate of registration from the secretary as provided in this section.
c. Any applicant shall file with the department an application for a certificate of registration in such form and containing such information as the secretary shall prescribe, including the following:
(1) the applicant's name, address and telephone number;
(2) each business name under which the applicant engages in or intends to engage in telemarketing, if such name is different than the applicant's;
(3) the complete street address and primary telephone number of each location, designating the principal location, from which the applicant engages in or intends to engage in telemarketing, including each location at which mail will be received by or on behalf of the applicant, and identifying any such location that is a post office box or mail drop;
(4) the name, address and telephone number of each principal of the business;
(5) whether the applicant or any principal thereof has been convicted or plead guilty to or is being prosecuted by indictment or information for racketeering, violations of securities laws, or a theft offense of any state, or the United States;
(6) whether any injunction or judgment has been entered into against the applicant or any principal, or such applicant or principal has entered into a settlement agreement, assurance of discontinuance, consent decree or any similar instrument in any civil action involving theft, racketeering, embezzlement, conversion, misappropriation of property, fraud, or deceptive, unfair, illegal or unconscionable trade practices, and whether any civil action involving such practices is currently pending, to the extent not inconsistent with any existing court orders; and
(7) whether the license to engage in any business, trade or profession of the applicant or any principal thereof has been refused, suspended or revoked in any jurisdiction.
d. Upon receipt of the completed application for registration and required fee, and unless such certificate of registration has been denied as provided in subdivision five of this section, the secretary shall issue and deliver to the applicant a certificate in such form and manner as the secretary shall prescribe, but which must set forth the applicant's name, business address, and the effective term of the registration. A registration certificate issued or renewed under the provisions of this section shall entitle a person to act as a registered telemarketer for a period of two years from the effective date of the registration.
e. Any registration granted under this section may be renewed by the secretary upon application by the holder thereof, in such form as the secretary may prescribe. The secretary shall have the authority to assign staggered expiration dates for licenses at the time of renewal.
If the assigned date results in a term that exceeds two years, the applicant shall pay an additional pro-rata adjustment together with the fee prescribed in paragraph f of this subdivision.
f. Each application for a certificate of registration shall be accompanied by a fee of five hundred dollars, which shall not be refundable.
g. The fees collected pursuant to this subdivision shall be deposited to the credit of the business and licensing services account established pursuant to the provisions of section ninety-seven-y of the state finance law.
h. Any person holding a certificate of registration shall be required to provide notice of any change in the information required of applicants by this section, in such form and manner, and within such time period as the secretary shall prescribe.
i. No person required to be registered under this subdivision shall be entitled to enforce any agreement or seek any consideration or any other payment for goods and services offered through telemarketing unless such person is in compliance with this subdivision and subdivision four of this section.
j. The secretary shall prescribe rules and regulations to administer this subdivision and subdivision four of this section.
4. Bonding of telemarketers. a. Any applicant shall, at the time of any original application for a certificate of registration, file with the secretary, in the form and amount as prescribed in this subdivision and satisfactory to the secretary:
(1) A bond with a corporate surety, from a company authorized to do business in this state; or
(2) An irrevocable letter of credit or a certificate of deposit from a New York state or federally chartered bank, trust company, savings bank or savings and loan association qualified to do business in New York state and insured by the federal deposit insurance corporation.
b. Such bond, letter of credit, or certificate of deposit shall be maintained for three years from the date the telemarketer ceases telemarketing, or three years from the date the certificate of registration terminates, whichever is earlier.
c. The principal sum of the bond, letter of credit, or certificate of deposit shall be twenty-five thousand dollars, which shall be maintained until the period specified in paragraph b of this subdivision, subject to paragraph g of this subdivision.
d. The bond, letter of credit or certificate of deposit shall be payable in favor of the people of the state of New York for the benefit of any customer injured as a result of a violation of this section, pursuant to a determination of any court of competent jurisdiction pursuant to this section, or article ten-B of the personal property law.
e. The aggregate liability of the surety upon the bond or the banking organization upon the letter of credit or certificate of deposit to all persons for all breaches of the conditions of the bond shall in no event exceed the amount of the bond, letter of credit or certificate of deposit.
f. The bond, letter of credit or certificate of deposit shall not be canceled, revoked, diminished or terminated except after notice to, and with the consent of, the secretary at least forty-five days in advance of such cancellation, revocation, or termination. Unless the bond is replaced by another bond, letter of credit or certificate of deposit in conformity with this subdivision prior to the expiration of the forty-five day period, the registration of the telemarketer shall be treated as terminated as of the cancellation, revocation or termination of the bond.
g. The registration of the telemarketer shall be treated as terminated as of the date the amount of the bond, letter of credit or certificate of deposit falls below the amount required by this subdivision.
h. Any change in ownership of a telemarketer shall not release, cancel or terminate liability under this subdivision under any bond, letter of credit, or certificate of deposit filed for any telemarketer as to any customer who was injured as a result of a violation of this section or article ten-B of the personal property law while such bond, letter of credit or certificate of deposit was in effect unless such transferee, purchaser, successor or assignee of such telemarketer obtains a bond, letter of credit or certificate of deposit under this subdivision for the benefit of such customer. Nothing in this paragraph shall be construed to authorize any telemarketer to cancel any bond, letter of credit, or certificate of deposit where such cancellation is not otherwise authorized by this subdivision.
5. Refusal to issue, suspension, and revocation of registration. a. The secretary, or any person deputized or so designated by him or her may deny the application of any person for a certificate of registration, refuse to issue a renewal thereof, suspend or revoke such certificate or in lieu thereof assess a fine not to exceed one thousand dollars per violation, if he or she determines that such applicant, or any of its principals:
(1) has made a material false statement or omitted a material fact in connection with an application under this section;
(2) was the former holder of a certificate of registration issued hereunder which the secretary revoked, suspended, or refused to renew;
(3) has failed to furnish satisfactory evidence of good character, reputation and fitness;
(4) with respect to the applicant, is not the true owner of the telemarketer, except in the case of a franchise;
(5) is in violation of or has violated any of the following statutes and the regulations thereunder, as such statutes and regulations may from time to time be amended:
(a) this section;
(b) article ten-B of the personal property law;
(c) the act of congress entitled the "telemarketing and consumer fraud and abuse prevention act" (P.L. 103-297);
(6) has been convicted or plead guilty to or is being prosecuted by indictment or information for racketeering, violations of securities laws, or a theft offense of this state, or the United States;
(7) has had any injunction or judgment entered against him or her in any civil action, or such applicant or principal has entered into a settlement agreement, assurance of discontinuance, consent decree o any similar instrument involving theft, racketeering, embezzlement, conversion, misappropriation of property, fraud or deceptive, unfair, illegal or unconscionable trade practices;
(8) has had a license or registration to engage in any business, occupation or profession suspended or revoked in any jurisdiction which may impact upon the applicant's fitness for registration under this section; or
(9) has committed, or is committing deceptive, unfair, illegal or unconscionable trade practices in violation of the laws of this or any other state or the United States.
b. Any proceeding conducted pursuant to paragraph a of this subdivision shall be subject to the state administrative procedure act.
6. Deceptive telemarketing acts and practices. a. It shall be unlawful for any telemarketer to directly or indirectly engage in the following conduct:
(1) fail to furnish a copy of the certificate of registration at the request of any interested party;
(2) present or attempt to present, as their own, the registration certificate of another;
(3) give false or misleading information;
(4) misrepresent himself or herself to be registered;
(5) use or attempt to use a registration certificate which has been revoked, suspended or is otherwise not valid;
(6) advertise telemarketing services without having a valid certificate of registration under this section;
(7) represent in any manner that his or her registration constitutes approval or endorsement of any governmental agency;
(8) assist or support any person when the telemarketer or any identified employee knew or should have known that the person was engaged in an act or practice in violation of this section or article ten-B of the personal property law;
(9) request a fee in advance to remove adverse information or modify adverse information to improve a person's credit history or credit record;
(10) except for an attorney engaged in the practice of law, request or receive payment in advance from a person to recover or otherwise aid in the return of money or any other item lost by the customer in a prior telemarketing transaction;
(11) obtain or submit for payment a check, draft, or other form of negotiable paper drawn on a person's checking, savings, share, or similar account, without that person's express written authorization;
(12) procure the services of any professional delivery, courier or other pickup service to obtain receipt or possession of a customer's payment, unless the goods or services are delivered with the reasonable opportunity to inspect before any payment is collected; or
(13) misrepresent, directly or by implication, that a premium is a prize.
b. Telemarketers shall provide all of the following information, in a clear and coherent manner using words with common and everyday meanings, when making a telemarketing call:
(1) at the beginning of the call and prior to any request by the caller of the customer to release or disclose any of the customer's personal or financial information, including but not limited, to the customer's name, address, credit card, checking account or other financial account number or information:
(a) that the purpose of the telephone call is to offer goods or services for which a fee will be charged or to provide an investment opportunity, whichever is the case;
(b) the telemarketer's name and the person on whose behalf the solicitation is being made if other than the telemarketer;
(c) the identity of the goods or services for which a fee will be charged; and
(d) whether the call is being recorded.
(2) the cost of the goods or services that are the subject of the call.
(3) in any prize promotion, the odds of being able to receive the prize, and if the odds are not calculable in advance, the factors used in calculating the odds; that no purchase or payment is required to win a prize or to participate in a prize promotion; and the no purchase/no payment method of participating in the prize promotion with either instructions on how to participate or an address or local or toll-free telephone number to which customers may write or call for information on how to participate; and all material costs or conditions to receive or redeem a prize that is the subject of the prize promotion.
7. Abusive telemarketing acts or practices. It shall be unlawful for any telemarketer to:
a. threaten, intimidate or use profane or obscene language;
b. engage in conduct or behavior a reasonable person would deem to be abusive or harassing;
c. initiate a telemarketing call to a person, when that person has stated previously that he or she does not wish to receive solicitation calls from that telemarketer provided, however that nothing in this section shall be construed to prohibit a telemarketer from telemarketing goods, services or investment opportunities to any customer of any affiliate, subsidiary or parent of such telemarketer;
d. engage in telemarketing to a person's residence at any time other than between 8:00 A.M. and 9:00 P.M. local time, at the called person's location; or
e. make a false, deceptive or misleading statement in regard to the requirements of subdivision six of this section to a customer, or to engage in any deceptive or unfair act or practice in association with telemarketing.
f. 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.
7-a. Unlawful transmission of certain caller identification information. 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.
8. Recordkeeping requirements. a. All telemarketers shall keep for a period of twenty-four months from the date the record is produced records of all financial transactions, written notices, disclosures and acknowledgments, including but not limited to:
(1) records of calls resulting in a promise by the customer to pay or otherwise exchange consideration for goods and services, including but not limited to the name and last known address of each customer, the goods or services selected, the date such goods were shipped or provided and the quantity provided, the amount charged by the company for the goods or services provided (including all other related fees or charges of any kind, including shipping and handling fees), and the amount actually paid by the customer for the goods and services provided;
(2) the name and last known address of each prize recipient and the prize awarded having a value of twenty-five dollars or more; and
(3) the name, any fictitious name used, the last known home address and telephone number, and the job title for all current and former employees directly involved in telephone sales; provided, however, that if the telemarketer permits fictitious names to be used by employees, each fictitious name must be traceable to only one specific employee.
b. A telemarketer may keep the records required by paragraph a of this subdivision in any form, and in the manner, format, or place as they keep such records in the ordinary course of business.
c. In the event of any dissolution or termination of the telemarketer's business, a representative of the telemarketer shall maintain all records as required under this subdivision, which shall be the person required to maintain such records in the event of dissolution or termination under rules and regulations issued under the act of congress entitled the "telemarketing and consumer fraud and abuse prevention act" (P.L. 103-297), or any person designated by the telemarketer. In the event of any sale, assignment or other change of ownership of the telemarketer's business, the successor or assignee shall maintain all records required by this subdivision. In any case in which this paragraph applies, the telemarketer shall provide notice to the secretary, in the form and manner designated by the secretary of the disposition of such records within thirty days of the dissolution, termination, sale, assignment or change of ownership.
9. Waiver. Any waiver of the provisions of this section by any customer shall be unenforceable and void.
10. Exemptions. a. The following persons shall be exempt from the registration and bonding requirements set forth in subdivisions three and four of this section:
(1) the state, municipalities of the state, or any department or division of the state or such municipalities;
(2) the United States or any of its departments, agencies or divisions;
(3) colleges, universities and other institutions authorized by the regents of the university of the state of New York or comparable body in any other state or jurisdiction, to grant degrees, including licensed private schools and any registered business schools regulated by article one hundred one of the education law;
(4) a person, which has been operating for at least three years a retail business establishment in this state under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis:
(a) Either products are displayed and offered for sale or services are offered for sale and provided at the business establishment; and
(b) A majority of the person's business involves buyers' obtaining such products or services at the person's location;
(5) any not-for-profit corporation as defined in section one hundred two of the not-for-profit corporation law and charitable organizations.
b. The following acts or practices are exempt from the requirements of this section:
(1) telephone calls made by a telemarketer, collection agency or attorney engaged in the practice of law for the exclusive purpose of collecting a legal debt owed, in accordance with the applicable provisions of the Federal Fair Debt Collection Practices Act (15 U.S.C. §1692 et. seq.);
(2) telephone calls in which the sale, lease or other agreement for goods or services is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by a telemarketer, or a meeting between a telemarketer and customer;
(3) telephone calls that are received by a telemarketer initiated by a customer that are not the result of any solicitation by such telemarketer; and
(4) telephone calls between a telemarketer and any for-profit business, except calls involving the retail sale of nondurable office or cleaning supplies.
c. The following acts or practices are exempt from the requirements of paragraph b of subdivision six of this section.
(1) telephone calls pertaining to a renewal or continuation of an existing or prior contractual relationship or the continuation of an established business relationship between a customer and any telemarketer, provided that the telemarketer discloses any material changes in the terms and conditions of the prior contract, except for calls made by a telemarketer in which the telemarketer or any of its principals has previously engaged in any act or practice described in subparagraphs one, two, five, six, seven and eight of paragraph a of subdivision five of this section; and
(2) unsolicited telephone calls made by the telemarketer for the purpose of overall efforts to develop new business that include other methods and techniques intended to identify and communicate with potential customers provided however that for all transactions which are incidental to the call and result in the exchange of goods and services the telemarketer shall disclose 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 identity of the goods or services for which a fee will be charged; and
(c) the cost of the goods or services that are the subject of the call.
10-a. The following persons are exempt from the fee and bonding requirements set forth in paragraph f of subdivision three and subdivision four of this section: A person engaged in a business or occupation which is licensed, registered, chartered, certified or incorporated with or by any state or federal agency. Provided, however, any person not licensed, registered, chartered, certified or incorporated with any New York state or federal agency, shall submit evidence to the secretary of state, in a form and manner to be prescribed by the secretary, of any license, registration, charter, certification or incorporation issued by an agency or governmental entity in this or any other state.
11. Enforcement. a. Every violation of this section shall be deemed a deceptive act and practice subject to enforcement under article twenty-two-A of this chapter. In addition, the district attorney, county attorney, and the corporation counsel shall have concurrent authority to seek the relief in paragraph b of this subdivision, and all civil penalties obtained in any such action shall be retained by the municipality or county.
b. In every case where the court shall determine that a violation of this section has occurred, it may impose a civil penalty of not less than one thousand dollars nor more than two thousand dollars for each violation. Such penalty shall be in addition to the denial of registration or renewal, suspension of registration or revocation of registration or assessment of a fine authorized by subdivision five of this section.
c. Any person who contracts with a telemarketer for telemarketing services and has actual knowledge that the telemarketer is acting in violation of this section shall be deemed to be in violation of this section, unless such person takes reasonable measures to prevent and correct any conduct that violates this section.
d. Nothing in this section shall be construed to restrict any right which any person may have under any other statute or the common law.
12. Criminal penalties. Any person who is convicted of knowingly violating paragraph a or b of subdivision three of this section, or subparagraph two, three, four or five of paragraph a of subdivision six of this section shall be guilty of a class B misdemeanor. Any person who is convicted of knowingly violating subparagraph eleven or twelve of paragraph a of subdivision six of this section shall be guilty of a class A misdemeanor.
13. Separability clause; construction. If any part or provision of this section or the application thereof to any person or circumstances be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operations to the part, provision or application directly involved in the controversy in which such judgment shall have been rendered and shall not affect or impair the validity of the remainder of this section or the application thereof to other persons or circumstances.
§ 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.
For more information, see here: http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:
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http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:
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