Tighten Telemarketing Rules

Section 1. Section 399-z of the general business law, as amended by chapter 369 of the laws of 2012, paragraph k of subdivision 1 as amended and paragraphs l and m of subdivision 1 as added by chapter 484 of the laws of 2016, subdivision 2 as amended by chapter 239 of the laws of 2017 and subdivision 2-a as amended by chapter 18 of the laws of 2017, is amended to read as follows:

§ 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] means the department of state.

b. "Secretary" [shall mean] means 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

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD09696-01-9

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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, (i) makes telemarketing sales calls or electronic messaging texts to a customer when the customer is in this state [or any person who], (ii) directly controls or supervises the conduct of a telemarketer, or (iii) intentionally aids, contracts with or requests a telemarketer to engage in telemarketing. 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 or more telephone [call] calls or electronic messaging texts by a telemarketer in which the customer is located within the state at the time of the call. Telemarketing also includes the acceptance or collection of information obtained from telephone calls or electronic messaging texts with the intent of providing it to a third party who accepts or collects the information to engage in telemarketing. 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 other than a call made:

(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[; and].

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 that is displayed on a device in or connected to the subscriber's telephone.

n. "Area code" means the first three digits of the ten-digit telephone number.

o. "Entity specific do-not-call list" means the list of telephone numbers provided directly to the telemarketer by the owners of the telephone numbers for the purpose of being removed from any future telemarketing calls.

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p. "Short-duration volume caller" means any telemarketer that intends to surpass or has surpassed five thousand dialed telephone calls during any given day where it is reasonably anticipated that over seventy percent of telephone calls placed may go unanswered or the call duration of over seventy percent of calls placed will be less than thirty-five seconds.

q. "Automatic number identification" means any data message, protocol or part thereof which communicates the telephone number to be displayed on the caller identification of the telephone call recipient. Automatic number identification includes a calling party number, initial address message, and calling line identification.

r. "New York state automatic number identification" means any automatic number identification with an area code designated by the North American Numbering Plan to cover locations in New York state.

s. "North American Numbering Plan" has the meaning ascribed to it by federal communications commission regulations, defined in 47 C.F.R. section 52.5(d).

t. "Public switched telephone network" means all telephones, mobile telephones and devices assigned telephone numbers from the North American Numbering Plan.

u. "Telephone dialing services" means any service providing telephone call distribution or telephone call dialing services, including but not limited to off-premise, on-premise, gateway and internet-based means of originating telephone calls to the devices on the public switched telephone network.

v. "Downstream carrier" means any person providing transporting telephone call traffic accepted from another carrier, such as an upstream carrier.

w. "Upstream carrier" means any person transporting telephone call traffic to another carrier, such as a downstream carrier.

x. "Automatic telephone dialing system" means any equipment or service which has the capability to store or produce telephone numbers to be called, and to dial such numbers.

y. "Auto-dialed call" means any telephone call initiated by an automatic telephone dialing system.

z. "Electronic messaging text" means real-time or near real-time nonvoice 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

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not be a violation to substitute (for the name and [phone] telephone 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 15 U.S.C. 6151, and referenced by 16 C.F.R. Section 310.4 (b) (1) (iii) (B), to 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-notcall" 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).

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, using plain language and printed in type no less than twelve-point type, 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[.];

e. is displayed before any mechanism offered to the customer to verify or acknowledge consent; and

f. contains the following language:

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(i) "This express agreement applies only between the customer and the specific entity offering the agreement, and any named partner or affiliate entity."

(ii) "By clicking or otherwise acknowledging agreement, I understand that I consent to and may receive telemarketing sales calls even if I have previously entered my number on the national 'do-not-call' registry maintained by the federal trade commission."

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.