NY CLS Gen Bus § 399-p
§ 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
[fig 1] 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.
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