§ 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. "Board" shall mean the consumer protection board;
b. "Director" means the executive director of the consumer protection board;
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. "Person" means any natural person, association, partnership, firm, corporation and its affiliates or subsidiaries or other business entity;
g. "Telemarketer" means any person who, for financial profit or commercial purposes in connection with telemarketing, makes telemarketing sales calls 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;
h. "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 media other than by telephone calls;
i. "Telemarketing sales call" means a telephone call made by a telemarketer to a customer for the purpose of inducing payment or the exchange of any other consideration for any goods or services;
j. "Unsolicited telemarketing sales call" means any telemarketing sales call other than a call made:
(i)
in response to an express written or verbal request of the customer called; or
(ii)
in connection with an established business relationship, which has not been terminated by either party; unless the customer has stated to the telemarketer that such customer no longer wishes to receive the telemarketing sales calls of such telemarketers; or
(iii)
to an existing customer, unless such customer has stated to the telemarketer that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer.
2. a. The board 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 board 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 board.
b. The board 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 board 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.
3. 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(s) has been on the national "do-not-call" registry, established by the federal trade commission, for at least three months prior to the date the call is made, or more than thirty days after the customer's name and telephone number or numbers appear on the then current quarterly no telemarketing sales calls registry made available by the board pursuant to subdivision two of this section.
4. a. The board 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.
5. The board shall prescribe rules and regulations to administer this section.
6. a. Where it is determined after hearing that any person has violated one or more provisions of this section, the director, 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.
7. 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 has established and implemented written policies and procedures related to the requirements of this section;
b. the person has trained his or her personnel in the requirements of this section;
c. the person maintains records demonstrating compliance with paragraphs a and b of this subdivision and the requirements of this section; and
d. any subsequent unsolicited telemarketing sales call is the result of error.