2013 New York Consolidated Laws
GBS - General Business
Article 26 - (390 - 399-ZZZ) MISCELLANEOUS
399-P - Telemarketing; use of automatic dialing-announcing devices and placement of consumer telephone calls.

 
    §  399-p.  Telemarketing;  use of automatic dialing-announcing devices
  and placement of consumer telephone calls. 1. Definitions.  As  used  in
  this section, the following terms shall have the following meanings:
    (a)   "automatic   dialing-announcing   device"  means  any  automatic
  equipment which incorporates a storage capability of  telephone  numbers
  to  be  called  and  is used, working alone or in conjunction with other
  equipment, to disseminate a prerecorded message to the telephone  number
  called without the use of an operator;
    (b)   "person"   means   any   natural   person,  firm,  organization,
  partnership,  association  or  corporation,  or  other  entity,  whether
  for-profit or not-for-profit;
    (c)  "consumer"  means  a natural person who is solicited to purchase,
  lease or receive a good or service for  personal,  family  or  household
  use;
    (d)  "consumer telephone call" means a call made to a telephone number
  by a telephone solicitor, whether  by  device,  live  operator,  or  any
  combination  thereof,  for  the  purpose  of  soliciting  a  sale of any
  consumer goods or services for personal, family or household purposes to
  the consumer called, or for the purpose of soliciting  an  extension  of
  credit for consumer goods or services to the consumer called, or for the
  purpose of obtaining information that will or may be used for the direct
  solicitation  of  a  sale  of consumer goods or services to the consumer
  called or an extension of credit for such purposes;  provided,  however,
  that  "consumer  telephone  call"  shall  not  include  a call made by a
  telephone corporation, as defined by subdivision  seventeen  of  section
  two  of  the  public  service  law,  in  response  to a specific inquiry
  initiated by a consumer regarding that consumer's existing or  requested
  telephone service; and
    (e)  "telephone  solicitor"  means  a person who makes or causes to be
  made a consumer telephone call.
    2. No person shall operate an automatic dialing-announcing device, nor
  place any  consumer  telephone  call,  except  in  accordance  with  the
  provisions of this section. The use of such device by any person, either
  individually  or  acting  as  an officer, agent, or employee of a person
  operating  automatic  dialing-announcing  devices,  is  subject  to  the
  provisions of this section.
    3. Whenever telephone calls are placed through the use of an automatic
  dialing-announcing device, such device shall do all of the following:
    (a)  state at the beginning of the call the nature of the call and the
  name of the person or on whose behalf the message is  being  transmitted
  and  at the end of such message the address, and telephone number of the
  person on  whose  behalf  the  message  is  transmitted,  provided  such
  disclosures  are  not otherwise prohibited or restricted by any federal,
  state or local law; and
    (b)  disconnect  the  automatic  dialing-announcing  device  from  the
  telephone  line  upon  the  termination of the call by either the person
  calling or the person called.
    4. No person shall  operate  an  automatic  dialing-announcing  device
  which  uses  a random or sequential number generator to produce a number
  to be called.
    5. No automatic dialing-announcing device shall be used to call and no
  consumer telephone call shall be placed to an emergency  telephone  line
  including  but  not  limited  to any 911 or E-911 line, or any emergency
  line of any volunteer fire company or  fire  department;  any  emergency
  medical  service,  ambulance  service,  voluntary  ambulance  service or
  hospital ambulance service as defined in section three thousand  one  of
  the public health law; any hospital, nursing home, or residential health
  care  facility  as  defined  in  section twenty-eight hundred one of the

  public health law; any adult care facility as defined in section two  of
  the  social  services  law;  or  any  law  enforcement  agency or to the
  telephone line of any guest  room  or  patient  room  of  any  hospital,
  nursing  home, or residential health care facility as defined in section
  two thousand eight hundred one of the public health law,  or  any  adult
  care  facility  as defined by section two of the social services law. It
  shall not constitute a violation of this subdivision if the  person  who
  places  such a call can affirmatively establish that the call was placed
  inadvertently despite good faith efforts on the part of such  person  to
  comply  with  the  provisions  of  this  section  and  such  person  has
  implemented a procedure to prevent subsequent calls from being placed to
  a particular prohibited telephone number.
    6. A telephone solicitor shall not make a consumer telephone call to a
  consumer unless the telephone solicitor conforms with  subparagraph  one
  of   paragraph   b   of   subdivision   six  of  section  three  hundred
  ninety-nine-pp of this article. Nothing contained herein shall be deemed
  to limit, annul, alter, or affect the provisions of subdivision three of
  this section.
    6-a.  No  telephone  solicitor  or  person  who  places  any  consumer
  telephone  call  or  who operates an automatic dialing-announcing device
  and no  employer  of  any  such  telephone  solicitor  or  person  shall
  intentionally cause to be installed, or shall intentionally utilize, any
  blocking  device  or service to prevent the name and/or telephone number
  of such solicitor or person, or the name and/or telephone number of  his
  or  her employer, from being displayed on a caller identification device
  of the recipient of any such consumer telephone  call.  A  violation  of
  this subdivision shall be subject to the provisions of subdivision eight
  of this section.
    7.  (a)  Federal,  state  or  local municipalities, or any subdivision
  thereof, using an  automatic  dialing-announcing  device  for  emergency
  purposes shall be exempted from the provisions of this section.
    (b)   Notwithstanding   the   provisions  of  paragraph  (a)  of  this
  subdivision, any entity which operates  a  telephone  warning  or  alert
  system  which utilizes any such device for emergency purposes shall also
  be exempted from the provisions of this section.
    8. Whenever there shall be a violation of this section, an application
  may be made by the attorney general in the name of  the  people  of  the
  state  of New York to a court or justice having jurisdiction to issue an
  injunction, and upon notice to the defendant of not less than five days,
  to enjoin and restrain the continuance of such  violations;  and  if  it
  shall  appear  to  the  satisfaction  of  the court or justice, that the
  defendant has, in fact, violated  this  section  an  injunction  may  be
  issued  by  such  court or justice enjoining and restraining any further
  violation, without requiring proof that any person has,  in  fact,  been
  injured  or  damaged thereby. In any such proceeding, the court may make
  allowances to the attorney general  as  provided  in  paragraph  six  of
  subdivision  (a)  of  section  eighty-three  hundred  three of the civil
  practice law and rules, and direct restitution. Whenever the court shall
  determine that a violation of subdivision three, four or  five  of  this
  section  has  occurred, the court may impose a civil penalty of not more
  than two thousand dollars per call, up to  a  total  of  not  more  than
  twenty   thousand  dollars,  for  calls  placed  in  violation  of  such
  subdivisions within a continuous seventy-two hour period.  Whenever  the
  court  shall  determine  that  a  violation  of  subdivision six of this
  section, or a violation  of  subdivision  six-a  of  this  section,  has
  occurred,  the  court  may  impose  a civil penalty of not more than two
  thousand dollars. In connection with any such proposed application,  the
  attorney general is authorized to take proof and make a determination of

  the  relevant  facts and to issue subpoenas in accordance with the civil
  practice law and rules.
    9.  In addition to the right of action granted to the attorney general
  pursuant to this section, any person who has received a  telephone  call
  in  violation  of  subdivision  three,  four or five of this section may
  bring an action in his own name to enjoin such unlawful act or practice,
  an action to recover his actual damages or fifty dollars,  whichever  is
  greater,  or  both  such  actions.  The  court  may,  in its discretion,
  increase the award of damages to an amount not to exceed three times the
  actual damages up to one  thousand  dollars,  if  the  court  finds  the
  defendant  willfully  or knowingly violated such subdivisions. The court
  may award reasonable attorney's fees to a prevailing plaintiff.