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A02224 Summary:

BILL NOA02224
 
SAME ASSAME AS S04777
 
SPONSORPaulin
 
COSPNSRButtenschon, Lavine, Englebright, McDonald, Cymbrowitz, D'Urso, Griffin, Gottfried, Arroyo, Dinowitz, Jaffee, Stern, Cruz, Zebrowski, Crespo, Burke, Lupardo, Colton, Jean-Pierre, Thiele, Cook, Dickens, Brabenec, Montesano, Schmitt, McDonough, Galef, Sayegh, Simon, Ortiz, Hunter, Reyes, Byrne, Raia, Reilly, Walczyk, Smullen, Wright, Abinanti, Hyndman, Weprin, Jones, Buchwald, Mikulin, Rosenthal L, Otis
 
MLTSPNSRHevesi, Schimminger
 
Amd §399-z, Gen Bus L
 
Enacts the "nuisance call act"; requires telemarketer's or seller's entity specific do-not-call list; and requires the express written agreement from a consumer before a telemarketer or seller can transmit, share, or otherwise make available any customer's contact information.
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A02224 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2224               REVISED 08/26/2019
 
SPONSOR: Paulin
  TITLE OF BILL: An act to amend the general business law, in relation to enacting the "nuisance call act"   PURPOSE: To offer heightened protections to consumers to curb the nuisance posed by unwanted telemarketing calls.   SUMMARY OF PROVISIONS: Section one sets out the title of this act as the "Nuisance Call Act." Section two amends section 399-z of the general business law to require that 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 add ed to the sell- er's entity specific do-not-call list. If the customer opts to do so, the telemarketer or seller must immediately end the call and must add the number called to such do-not-call list. This section also provides that 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 electron- ic format, unless otherwise required by law, or pursuant to a lawful subpoena or court order. Section three provides the effective date.   JUSTIFICATION: Americans received an estimated 16.3 billion nuisance calls in the first five months of 2018 alone. (1)In the month of September 2018, roughly 4.4 billion robocalls were reported. (2) These numbers continue to rise and over the past year, the number of robocalls received by consumers has increased at rates as a high as 900 million more calls per month as compared with last year. (3) In 2017, only about 3.7% of all calls to cell phones were considered to be nuisance calls. (4) In 2018, that number rose to about 29% and by 2019, it is expected that at least 45% of all calls to cell phones will be nuisance calls. (5) These figures illustrate an urgency and necessity to enact legislation to protect consumers from the ever-increasing nuisance posed by these unwanted calls. In 2001, the New York State Do Not Call Law took effect; allowing consumers to place their landline and mobile telephone numbers in a central national Do-Not-Call Registry to reduce the number of prerecorded telemarketing calls they receive. However, there is a need to expand this protection to live telemarketing calls. With the establishment of the Do-Not-Call Registry targeting prerecorded calls, there has been an increased incidence of consumers receiving live telemarketing calls. This legislation will help to close that loophole and to lessen the nuisance posed by telemarketing calls by offering heightened protections to consumers. It is uniquely tailored to cover unsolicited phone calls intending to result in a direct sale of goods or services by a telemark- eter to a consumer, consistent with the definitions of "telemarketer" and "telemarketing sales call" set forth in the General Business Law. In the case of any live telemarketing sales call, the telemarketer will have to inform the customer that he or she may request that their number be added to the seller's entity specific do-not-call list. If the person opts to do so, the call must immediately end and the telemarketer must add the person's number to their do-not-call list. In addition, this legislation will address the common issue of telemark- eters selling individual's contact information, leading consumers to receive calls they never intended nor asked to receive. Telemarketers would be prohibited from sharing a customer's contact in formation with any other person, corporation, or entity unless the telemarketer has obtained their express consent in writing. As the incidence of nuisance calls continues to rise, the protections set out in this bill are necessary in order to safeguard consum ers' personal information and to curb the number of unwanted calls they receive.   LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law. (1) See https://www.cnbc.com/20 18/06/06/ americans-got16-billion-robo- calls-this-year- heres-how-to-stop-them.html (2) See https://www.consumerreports.org/ robocalls/best-ways-to- fightrobocalls/ (3) See https://www.nytimes.com/2018/05/ 06/your-money/robocal is-rise- illegal.html (4) See https://www.washingtonpost.com/ technology/2018/09/19/nearly-half-cellphone -calls-will-be-scams-byreportsays/?utm_term=.6dcOe b2b0198. (5) Id.
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A02224 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2224
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 22, 2019
                                       ___________
 
        Introduced by M. of A. PAULIN -- read once and referred to the Committee
          on Consumer Affairs and Protection
 
        AN  ACT  to  amend the general business law, in relation to enacting the
          "nuisance call act"
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Short  title. This act shall be known and may be cited as
     2  the "nuisance call act".
     3    § 2. Subdivisions 9, 10, 11, 12, 13, 14 and 15 of section 399-z of the
     4  general business law, subdivisions 9 and 15 as  added  and  subdivisions
     5  10, 11, 12, 13 and 14 as amended by chapter 369 of the laws of 2012, are
     6  amended to read as follows:
     7    9.  In  the  case  of  any  telemarketing sales call made by a natural
     8  person, the telemarketer or seller shall inform the customer that he  or
     9  she  may  request that his or her telephone number be added to the sell-
    10  er's entity specific do-not-call list. If the customer opts  to  do  so,
    11  the  telemarketer or seller shall immediately end the call and shall add
    12  the number called to such list or cause the number called to be added to
    13  such list.
    14    10. No telemarketer or seller shall transmit, share, or otherwise make
    15  available any customer's contact information, including name,  telephone
    16  number,  or  email address, which has been provided to such telemarketer
    17  or seller by such customer, to any person, corporation, or other  entity
    18  without the express agreement of the consumer in writing or in electron-
    19  ic  format,  unless  otherwise  required by law, or pursuant to a lawful
    20  subpoena or court order.
    21    11. Telemarketers and sellers shall keep for a period  of  twenty-four
    22  months from the date the record is created records relating to its tele-
    23  marketing activities.
    24    [10.]  12.  a. The department shall provide notice to customers of the
    25  establishment of the national "do-not-call" registry. Any  customer  who
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01119-01-9

        A. 2224                             2
 
     1  wishes  to  be  included on such registry shall notify the federal trade
     2  commission as directed by relevant federal regulations.
     3    b.  Any company that provides local telephone directories to customers
     4  in this state shall inform its  customers  of  the  provisions  of  this
     5  section by means of publishing a notice in such local telephone directo-
     6  ries.
     7    [11.] 13. When the department has reason to believe a telemarketer has
     8  engaged  in repeated unlawful acts in violation of this section, or when
     9  a notice of hearing has been issued  pursuant  to  subdivision  [twelve]
    10  fourteen  of  this  section,  the  department may request in writing the
    11  production of relevant documents and records as  part  of  its  investi-
    12  gation.  If  the person upon whom such request was made fails to produce
    13  the documents or records within  thirty  days  after  the  date  of  the
    14  request,  the  department  may  issue  and serve subpoenas to compel the
    15  production of such documents and records. If any person shall refuse  to
    16  comply  with  a  subpoena  issued under this section, the department may
    17  petition a court of competent jurisdiction to enforce the  subpoena  and
    18  such sanctions as the court may direct.
    19    [12.]  14. a. Where it is determined after hearing that any person has
    20  violated one or more provisions of this section, the secretary,  or  any
    21  person deputized or so designated by him or her may assess a fine not to
    22  exceed eleven thousand dollars for each violation.
    23    b.  Any  proceeding conducted pursuant to paragraph a of this subdivi-
    24  sion shall be subject to the state administrative procedure act.
    25    c. Nothing in this subdivision shall  be  construed  to  restrict  any
    26  right  which  any  person  may have under any other statute or at common
    27  law.
    28    [13.] 15. A person shall not be held liable for violating this section
    29  if:
    30    a. the person has obtained a version  of  the  "do-not-call"  registry
    31  from  the federal trade commission no more than thirty-one days prior to
    32  the date any telemarketing call is made, pursuant to 16 C.F.R.   Section
    33  310.4(b)(1)(iii)(B), and the person can demonstrate that, as part of the
    34  person's  routine business practice at the time of an alleged violation,
    35  it has established, implemented and updated written policies and  proce-
    36  dures  related to the requirements of this section prior to the date any
    37  telemarketing call is made;
    38    b. the person has trained his or her personnel in the requirements  of
    39  this section; and
    40    c.  the person maintains and can produce records demonstrating compli-
    41  ance with paragraphs a and b of this subdivision and the requirements of
    42  this section.
    43    [14.] 16. The department shall  prescribe  rules  and  regulations  to
    44  administer this section.
    45    [15.]  17. Severability. If any clause, sentence, paragraph or part of
    46  this section shall be adjudged by any court of competent jurisdiction to
    47  be invalid, such judgment shall not affect,  impair  or  invalidate  the
    48  remainder thereof, but shall be confined in its operation to the clause,
    49  sentence, paragraph or part thereof directly involved in the controversy
    50  in which such judgment shall have been rendered.
    51    §  3.  This  act shall take effect on the ninetieth day after it shall
    52  have become a law.
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