Bill Text: NY A00675 | 2019-2020 | General Assembly | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Limits robocalls to state residents and requires telephone service providers to offer free call mitigation technology to telephone customers.

Spectrum: Slight Partisan Bill (Democrat 40-14)

Status: (Introduced - Dead) 2020-01-08 - referred to corporations, authorities and commissions [A00675 Detail]

Download: New_York-2019-A00675-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         675--C

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                       (Prefiled)

                                     January 9, 2019
                                       ___________

        Introduced by M. of A. NIOU, ZEBROWSKI, COLTON, RICHARDSON, FITZPATRICK,
          EICHENSTEIN,  KIM,  ENGLEBRIGHT, FRONTUS, FAHY, D. ROSENTHAL, SOLAGES,
          BUCHWALD, D'URSO, GOTTFRIED, LiPETRI, MORINELLO, L. ROSENTHAL, WEPRIN,
          PEOPLES-STOKES, SEAWRIGHT,  REYES,  NORRIS,  WALCZYK,  BLANKENBUSH  --
          Multi-Sponsored by -- M. of A. BYRNES -- read once and referred to the
          Committee  on  Corporations,  Authorities and Commissions -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- again reported from said  committee  with  amend-
          ments,  ordered reprinted as amended and recommitted to said committee
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and recommitted to said committee

        AN  ACT to amend the general business law, in relation to limiting robo-
          calls to state residents and to require telephone service providers to
          offer free call mitigation technology to telephone customers

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  This act shall be known and may be cited as the "robocall
     2  prevention act".
     3    § 2. Section 399-p of the general business law, as amended by  chapter
     4  581  of the laws of 1992, subdivision 6 as amended by chapter 546 of the
     5  laws of 2000, subdivision 6-a as added and subdivision 8 as  amended  by
     6  chapter 176 of the laws of 1998, is amended to read as follows:
     7    §  399-p.  [Telemarketing;  use] Use of automatic [dialing-announcing]
     8  dialing devices and placement of robocalls and consumer telephone calls.
     9  1. Definitions. As used in this section, the following terms shall  have
    10  the following meanings:
    11    (a)  "automatic  [dialing-announcing] dialing device" means [any auto-
    12  matic equipment which incorporates a  storage  capability  of  telephone
    13  numbers  to  be called and is used, working alone or in conjunction with
    14  other equipment, to disseminate a prerecorded message to  the  telephone

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02262-16-9
        A. 675--C                           2

     1  number  called  without  the  use of an operator] equipment that makes a
     2  series of calls to stored telephone numbers, including numbers stored on
     3  a list, except for equipment that requires a human to dial or place each
     4  individual  call  and participate in the call after such human initiates
     5  the call or series of calls;
     6    (b) "person" means any natural person,  firm,  organization,  partner-
     7  ship, association or corporation, or other entity, whether for-profit or
     8  not-for-profit;
     9    (c)  "consumer"  means  a natural person who is solicited to purchase,
    10  lease or receive a good or service for  personal,  family  or  household
    11  use;
    12    (d)  "consumer telephone call" means a call made to a telephone number
    13  by a telephone solicitor, whether  by  device,  live  operator,  or  any
    14  combination thereof, for the purpose of soliciting a sale of any consum-
    15  er  goods  or services for personal, family or household purposes to the
    16  consumer called, or for the purpose of soliciting an extension of credit
    17  for consumer goods or services  to  the  consumer  called,  or  for  the
    18  purpose of obtaining information that will or may be used for the direct
    19  solicitation  of  a  sale  of consumer goods or services to the consumer
    20  called or an extension of credit for such purposes;  provided,  however,
    21  that  "consumer telephone call" shall not include a call made by a tele-
    22  phone corporation, as defined by subdivision seventeen of section two of
    23  the public service law, in response to a specific inquiry initiated by a
    24  consumer regarding  that  consumer's  existing  or  requested  telephone
    25  service; [and]
    26    (e)  "telephone  solicitor"  means  a person who makes or causes to be
    27  made a consumer telephone call;
    28    (f) "robocall" means a call made, including a text message sent:
    29    (1) using an automatic dialing device; or
    30    (2) using an artificial or prerecorded voice;
    31    (g) "call mitigation technology" means technology that  identifies  an
    32  incoming  call  or  text  message  as  being,  or  as probably being, an
    33  unwanted robocall, and, on that  basis,  blocks  the  call  or  message,
    34  diverts  it  to  the  called  person's  answering  system,  or otherwise
    35  prevents it from being completed to the called person,  except  that  it
    36  permits  a call or text so identified to be completed when it is identi-
    37  fied as being made by a law enforcement or public safety entity;
    38    (h) "prior express consent" for a call means that the purpose  of  the
    39  call  must  be  closely  related  to the purpose for which the telephone
    40  number was originally provided by the called party. A call by a non-pro-
    41  fit organization which is federally tax exempt  pursuant  to  26  U.S.C.
    42  501(c), to a member who had joined such organization or to the household
    43  of  such a member, is presumed to be closely related. A customer's prior
    44  express consent can be revoked by  the  customer  at  any  time  in  any
    45  reasonable  manner, regardless of the context in which the owner or user
    46  of the telephone provided consent;
    47    (i) "telephone service provider" means any company that provides voice
    48  service utilizing any technology, regardless of whether such provider is
    49  regulated pursuant to the public service law;
    50    (j) "labor organization" means any  organization  of  any  kind  which
    51  exists  for  the purpose, in whole or in part, of representing employees
    52  employed within the state of New  York  in  dealing  with  employers  or
    53  employer  organizations  or with a state government, or any political or
    54  civil subdivision or other agency thereof, concerning terms  and  condi-
    55  tions  of employment, grievances, labor disputes, or other matters inci-
    56  dental to the employment relationship. For the purposes of this section,
        A. 675--C                           3

     1  each local, parent national or parent international  organization  of  a
     2  statewide  labor  organization,  and each statewide federation receiving
     3  dues from subsidiary labor organizations, shall be considered a separate
     4  labor organization; and
     5    (k) "department" means the department of state.
     6    2.  No  person  shall [operate an automatic dialing-announcing device]
     7  make any robocall, nor place any  consumer  telephone  call,  except  in
     8  accordance  with the provisions of this section. [The use of such device
     9  by any person, either individually or acting as an  officer,  agent,  or
    10  employee  of a person operating automatic dialing-announcing devices, is
    11  subject to the provisions of this section.]
    12    2-a. (a) A person shall be permitted to make a robocall only when such
    13  robocall is:
    14    (1) made for emergency purposes, pursuant to subdivision seven of this
    15  section;
    16    (2) made with the prior express consent of the called party;
    17    (3) made by a labor organization to such organization's members or  to
    18  the household of such members; or
    19    (4)  authorized  by regulations promulgated by the department pursuant
    20  to paragraph (b) of this subdivision.
    21    (b) The department, in consultation  with  the  department  of  public
    22  service,  shall  promulgate  regulations  to implement the provisions of
    23  this subdivision, and may permit, subject  to  such  conditions  as  the
    24  department  may  prescribe,  robocalls to be made to a residential tele-
    25  phone line without prior express consent if such calls are not made  for
    26  a commercial purpose.
    27    3. [Whenever telephone calls are placed through the use of an automat-
    28  ic dialing-announcing device, such device shall do all of the following]
    29  In addition to the provisions of subdivision two-a of this section:
    30    (a) If a robocall or consumer telephone call permitted by this section
    31  uses  an  artificial  or prerecorded voice, such call shall state at the
    32  beginning of the call the nature of the call and the name of the  person
    33  or  on  whose  behalf the message is being transmitted and at the end of
    34  such message the address, and telephone number of the  person  on  whose
    35  behalf  the  message  is  transmitted, provided such disclosures are not
    36  otherwise prohibited or restricted by any federal, state or  local  law;
    37  and
    38    (b) If a robocall permitted by this section is made using an automatic
    39  dialing  device, such device shall disconnect [the automatic dialing-an-
    40  nouncing device] from the telephone line upon  the  termination  of  the
    41  call by either the person calling or the person called.
    42    4.  No  person shall operate an automatic [dialing-announcing] dialing
    43  device which uses a random or sequential number generator to  produce  a
    44  number to be called.
    45    4-a.  (a) No person making a robocall shall knowingly cause any caller
    46  identification service to  transmit  misleading,  inaccurate,  or  false
    47  caller  identification  information  with  the  intent to defraud, cause
    48  harm, or wrongfully obtain anything of value.
    49    (b) This subdivision does not prohibit:
    50    (1) Any authorized activity of a law enforcement agency; or
    51    (2) Any activity pursuant to a court order that  specifically  author-
    52  izes the use of caller identification manipulation.
    53    4-b.  (a) A telephone service provider that provides telephone service
    54  to customers residing in the state shall make call mitigation technology
    55  available to any such customer,  upon  request,  and  at  no  additional
    56  charge.  Such provider shall also offer to any such customer the ability
        A. 675--C                           4

     1  to have the provider prevent calls and text messages identified as orig-
     2  inating from a particular person from  being  completed  to  the  called
     3  person, upon request, and at no additional charge.
     4    (b)  The  department,  in  consultation  with the department of public
     5  service, shall promulgate regulations to implement the  requirements  of
     6  this  subdivision,  including,  if  appropriate,  a  reasonable delay in
     7  requiring implementation and offering of call mitigation  technology  if
     8  for  good cause, taking into account the consumer protection purposes of
     9  this section, and including procedures for addressing incidents in which
    10  a call wanted by the customer is prevented from reaching  the  customer.
    11  The department may also promulgate regulations allowing for the require-
    12  ments  of  this subdivision to be waived for existing network facilities
    13  in instances where the telephone service provider can reasonably  demon-
    14  strate that call mitigation technology cannot feasibly be implemented on
    15  such  facilities due to technological limitations, until such time as it
    16  can be feasibly implemented.
    17    5. No [automatic dialing-announcing device shall be used to  call  and
    18  no]  robocall or consumer telephone call shall be placed to an emergency
    19  telephone line including but not limited to any 911 or  E-911  line,  or
    20  any emergency line of any volunteer fire company or fire department; any
    21  emergency   medical  service,  ambulance  service,  voluntary  ambulance
    22  service or hospital ambulance service as defined in section three  thou-
    23  sand  one of the public health law; any hospital, nursing home, or resi-
    24  dential health care facility as defined in section twenty-eight  hundred
    25  one  of  the  public  health  law; any adult care facility as defined in
    26  section two of the social services law; or any law enforcement agency or
    27  to the telephone line of any guest room or patient room of any hospital,
    28  nursing home, or residential health care facility as defined in  section
    29  two  thousand  eight  hundred one of the public health law, or any adult
    30  care facility as defined by section two of the social services  law.  It
    31  shall  not  constitute a violation of this subdivision if the person who
    32  places such a call can affirmatively establish that the call was  placed
    33  inadvertently  despite  good faith efforts on the part of such person to
    34  comply with the provisions of this section and such  person  has  imple-
    35  mented  a  procedure  to prevent subsequent calls from being placed to a
    36  particular prohibited telephone number.
    37    6. A telephone solicitor shall not make a consumer telephone call to a
    38  consumer unless the telephone solicitor conforms with  subparagraph  one
    39  of  paragraph b of subdivision six of section three hundred ninety-nine-
    40  pp of this article. Nothing contained herein shall be deemed  to  limit,
    41  annul,  alter,  or  affect  the  provisions of subdivision three of this
    42  section.
    43    6-a. No telephone solicitor or person who places  any  consumer  tele-
    44  phone  call  or  [who  operates  an automatic dialing-announcing device]
    45  robocall and no employer of any such telephone solicitor or person shall
    46  intentionally cause to be installed, or shall intentionally utilize, any
    47  blocking device or service to prevent the name and/or  telephone  number
    48  of  such solicitor or person, or the name and/or telephone number of his
    49  or her employer, from being displayed on a caller identification  device
    50  of  the  recipient  of  any such consumer telephone call. A violation of
    51  this subdivision shall be subject to the provisions of subdivision eight
    52  of this section.
    53    7. (a) Federal, state or  local  municipalities,  or  any  subdivision
    54  thereof,  [using  an automatic dialing-announcing device] making a robo-
    55  call for emergency purposes shall be exempted  from  the  provisions  of
    56  this section.
        A. 675--C                           5

     1    (b)  Notwithstanding  the provisions of paragraph (a) of this subdivi-
     2  sion, any entity  [which  operates]  making  a  robocall  for  emergency
     3  purposes  through  the  operation of a telephone warning or alert system
     4  [which utilizes any such device for emergency purposes]  shall  also  be
     5  exempted from the provisions of this section.
     6    8.  Whenever  there  shall  be  a violation of subdivision two, three,
     7  four, four-a, five, six, or six-a of this section, an application may be
     8  made by the attorney general in the name of the people of the  state  of
     9  New  York  to a court or justice having jurisdiction to issue an injunc-
    10  tion, and upon notice to the defendant of not less than  five  days,  to
    11  enjoin  and restrain the continuance of such violations; and if it shall
    12  appear to the satisfaction of the court or justice, that  the  defendant
    13  has,  in fact, violated subdivision two, three, four, four-a, five, six,
    14  or six-a of this section an injunction may be issued by  such  court  or
    15  justice enjoining and restraining any further violation, without requir-
    16  ing proof that any person has, in fact, been injured or damaged thereby.
    17  In  any  such  proceeding, the court may make allowances to the attorney
    18  general as provided in paragraph  six  of  subdivision  (a)  of  section
    19  eighty-three  hundred  three  of  the  civil practice law and rules, and
    20  direct restitution. Whenever the court shall determine that a  violation
    21  of  subdivision  two, three, four, or five of this section has occurred,
    22  the court may impose a civil penalty  of  not  more  than  two  thousand
    23  dollars  per  call,  up  to  a  total  of  not more than twenty thousand
    24  dollars, for calls placed in violation of  such  subdivisions  within  a
    25  continuous  seventy-two  hour period. Whenever the court shall determine
    26  that a violation of subdivision four-a of this section has occurred, the
    27  court may impose a civil penalty of not less than five thousand  dollars
    28  nor  more  than  ten  thousand  dollars for each violation. Whenever the
    29  court shall determine that  a  violation  of  subdivision  six  of  this
    30  section,  or  a  violation  of  subdivision  six-a  of this section, has
    31  occurred, the court may impose a civil penalty  of  not  more  than  two
    32  thousand  dollars. In connection with any such proposed application, the
    33  attorney general is authorized to take proof and make a determination of
    34  the relevant facts and to issue subpoenas in accordance with  the  civil
    35  practice law and rules.
    36    9.  In addition to the right of action granted to the attorney general
    37  pursuant to this section, any person who has received a  telephone  call
    38  in  violation  of  subdivision  two, three, four, four-a or five of this
    39  section may bring:
    40    (a) an action in his or her own name to enjoin such  unlawful  act  or
    41  practice[,];
    42    (b)  an  action  to  recover his or her actual damages or [fifty] five
    43  hundred dollars, whichever is greater[,]; or
    44    (c) both such actions. The court may, in its discretion, increase  the
    45  award  of  damages  to  an  amount not to exceed three times the [actual
    46  damages up to one thousand dollars] amount available under paragraph (b)
    47  of this subdivision, if the court finds the defendant willfully or know-
    48  ingly violated such subdivisions. The court [may] shall award reasonable
    49  attorney's fees to  a  prevailing  plaintiff.  Any  damages  recoverable
    50  pursuant  to  this  section may be recovered in any action which a court
    51  may authorize to be brought as a class action pursuant to  article  nine
    52  of the civil practice law and rules.
    53    10.  (a) The department, in consultation with the department of public
    54  service, shall report on issues related to  illegal  robocalls  made  to
    55  telephone  numbers owned by a person or entity in this state, and on the
    56  status of the implementation and offering of call mitigation  technology
        A. 675--C                           6

     1  by telephone service providers that provide telephone service to custom-
     2  ers  residing in the state. Such report shall be delivered no later than
     3  December first, two thousand twenty, and  annually  thereafter,  to  the
     4  governor,  the  temporary  president  of  the senate, the speaker of the
     5  assembly, the minority leader of the senate, and the minority leader  of
     6  the assembly.
     7    (b) Such report shall include:
     8    (1) A list of telephone service providers operating in this state, and
     9  the status of their implementation and offering of call mitigation tech-
    10  nology;
    11    (2) Information regarding delays in the implementation and offering of
    12  call mitigation technology, and the reasons for such delays;
    13    (3)  Recommendations for additional measures to protect customers from
    14  illegal robocalls;
    15    (4) The number of illegal robocalls made to telephone numbers owned by
    16  a person or entity in this state, to the extent that such information is
    17  known; and
    18    (5) Any other information or recommendations relating to the issue  of
    19  robocalls that the department judges to be pertinent or necessary.
    20    §  3.  Paragraph  b of subdivision 11 of section 399-pp of the general
    21  business law, as added by chapter 546 of the laws of 2000, is amended to
    22  read as follows:
    23    b. In every case where the court shall determine that a  violation  of
    24  this  section  has  occurred,  it may impose a civil penalty of not less
    25  than one thousand dollars nor more than two thousand  dollars  for  each
    26  violation,  provided that for a violation of subdivision seven-a of this
    27  section, the court may impose a civil penalty  of  not  less  than  five
    28  thousand  dollars nor more than ten thousand dollars for each violation.
    29  Such penalty shall be in addition  to  the  denial  of  registration  or
    30  renewal,  suspension  of  registration  or revocation of registration or
    31  assessment of a fine authorized by subdivision five of this section.
    32    § 4. If any provision of this act, or any application of any provision
    33  of this act, is  held to be invalid, that shall not affect the  validity
    34  or  effectiveness  of  any  other provision of this act, or of any other
    35  application of any provision of this act,  which  can  be  given  effect
    36  without  that  provision or application; and to that end, the provisions
    37  and applications of this act are severable.
    38    § 5. This act shall take effect on the ninetieth day  after  it  shall
    39  have  become  a  law.    Effective  immediately, the addition, amendment
    40  and/or repeal of any rule or regulation necessary for the implementation
    41  of this act on its effective date are authorized and directed to be made
    42  and completed on or before such effective date.