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


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 21-8)

Status: (Introduced) 2019-06-11 - print number 675d [A00675 Detail]

Download: New_York-2019-A00675-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         675--D

                               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 -- again reported from said commit-
          tee with amendments, 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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02262-27-9

        A. 675--D                           2

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

        A. 675--D                           3

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

        A. 675--D                           4

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

        A. 675--D                           5

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

        A. 675--D                           6

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