Text of Regulations - Do Not Call Registry


TEXT OF REGULATIONS  

Pursuant to the authority vested in the New York State Department of State section 94-a of the Executive Law and section 399-z, Laws of 2000, Chapter 547, Title 21, Sections 4602.1, 4602.2, 4603.1, 4603.2, 4603.3 and 4603.4 and Title 19, Section 400.8 of the Official Compilation of Codes, Rules and Regulations of the State of New York are amended, to be effective upon publication of a Notice of Adoption in the New York State Register, to read as follows:

Subdivision (a) of section 4602.1 is amended to read as follows:

Section 4602.1 Authorization of transfer of telephone numbers to federal registry The [Consumer Protection Board] New York State Department of State 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)[FN*] (herein referred to as the national “do-not-call” registry) serve as the New York State “do-not-call” registry.

Subdivisions (d) through (f) of section 4602.2 are amended to read as follows:

Section 4602.2 Definitions   

           (d) “Negative Option Feature” means, in an offer or agreement to sell or provide any goods or services, a provision under which the customer’s silence or failure to take an affirmative action to reject such goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer.

           [(d)] (e) Telemarketer means any person who, for financial profit or commercial purposes in connection with telemarketing, makes a telemarketing sales call to a consumer in this state or any person who directly controls or supervises the conduct of a telemarketer. Telemarketer shall also include any person, firm, or corporation acting as an agent or representative of such telemarketer. For purposes of this paragraph, commercial purposes shall mean the sale or offer for sale of goods and services. Charitable organizations as defined in section 171-a(1) of the Executive Law and registered pursuant to section 172 of the Executive Law, religious corporations as defined in section 2 of the Religious Corporations Law, political parties as defined in section 1- 104(3) of the Election Law, and political committees as defined in section 14-100(1) of the Election Law, are deemed not able to conduct any act or activity for commercial purposes and are deemed not to be operating for financial profit for purposes of these regulations.

           [(e)] (f) Telemarketing means any plan, program or campaign which is initiated by a telephone call to a consumer or a message left on a telephone answering machine or voice mail system of a consumer, conducted to induce or encourage 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 consumer receiving such call or message 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.

           [(f)] (g) Telemarketing sales call means a telephone call made by a telemarketer or by any outbound telephone calling technology that delivers a prerecorded message either to a consumer or to their voicemail or answering machine service for the purpose of encouraging the purchase or rental of, or investment in property, goods or services, or inducing payment or the exchange of any other consideration for any goods or services, where the consumer's receiving device is a telephone.

Section 4603.1 is amended to read as follows:   

4603.1 Violations         

           (a) No telemarketer or seller may make or cause to be made any unsolicited telemarketing sales call to any consumer more than 31 days after the telephone number appears on the national do-not-call registry, pursuant to 16 CFR section 310.4(b)(1)(iii)(B). Each call to a telephone number shall be deemed a separate occurrence for purposes of the penalty and enforcement provisions of these regulations.

           (b) No telemarketer or seller shall engage in telemarketing at any time other than between 8:00 a.m. and 9:00 p.m. local time unless the consumer has given his or her express consent to the call at a different time.

           (c) At the beginning of each telemarketing sales call telemarketers shall provide, in a clear and coherent manner using words with common and everyday meanings, all of the following information: (1) the telemarketer’s name and the person, firm or corporation on whose behalf the solicitation is being made, if other than the telemarketer; (2) the purpose of the telephone call; and (3) the identity of the goods or services for which a fee will be charged.

            (d) Prior to the purchase of any good or service, telemarketers shall disclose to the customer the cost of the goods or services that are the subject of the call and if the offer includes a negative option feature, all material terms and conditions of the negative option feature, including, but not limited to the fact that the customer’s account will be charged unless the customer takes an affirmative action to avoid the charges, the dates the charges will be submitted for payment, and the specific steps the customer must take to avoid the charge.

4603.2 Exceptions  

           (a) Unsolicited telemarketing sales call means any telemarketing sales call other than a call made:             

            (1) in response to an express written or verbal request of the specific customer called; or   

           (2) in connection with an established business relationship, which has not been terminated by either party, unless such customer has stated to the telemarketer or the telemarketer's agent that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer.; [or]

           [(3) to an existing customer, unless such customer has stated to the telemarketer or the telemarketer's agent that such customer no longer wishes to receive the telemarketing sales calls of such telemarketer.]

           (b) Established business relationship shall mean a prior or existing relationship formed by a voluntary two-way communication between a consumer and a telemarketer with or without an exchange of consideration, on the basis of the consumer's purchase or transaction with the telemarketer within the [eighteen] [(]18[)] months immediately preceding the date of the telephone call or on the basis of the consumer's inquiry or application regarding products or services offered by the telemarketer within the three [(3)] months immediately preceding the date of the call, which relationship has not been previously terminated by either party.    

           [(c) Existing customer shall mean a prior or existing relationship formed by a voluntary two-way communication between a consumer and a telemarketer with or without an exchange of consideration, on the basis of the consumer's purchase or transaction with the telemarketer within the 18 months immediately preceding the date of the telephone call or on the basis of the consumer's inquiry or application regarding products or services offered by the telemarketer within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.]         

           [(d)] (c) Person shall mean any natural person, association, partnership, firm, corporation, and its affiliates or subsidiaries or other business entity. Subdivision (a) of section 4603.3 is amended to read as follows: 4603.3 Safe Harbor provisions A person (which includes an entity, corporation, or other telemarketer) shall not be held liable for violating these regulations if the person can demonstrate, by clear and convincing evidence, that:  [(1)] (a) the person has obtained a version of the national 'do-not-call' registry from the Federal Trade Commission no more than 31 days prior to the date any telemarketing call is made, pursuant to 16 CFR section 310.4(6)(i))b)(iii) and as a part of the person's routine business practice, it has established, [and] implemented, and updated written policies and procedures related to the requirements of these regulations prior to the date any telemarketing call is made; [(2)] (b) the person has trained all personnel conducting telemarketing sales calls in the requirements of these regulations; [(3)] (c) the person maintains records demonstrating compliance with this section and the requirements of these regulations [in response to a notice from the board of alleged "do-not-call" violations] and (d) any subsequent unsolicited telemarketing sales call is the result of an error.  

Section 4603.4 is amended to read as follows:

4603.4 Enforcement      

           (a) When the New York State Department of State has reason to believe a telemarketer has engaged in repeated unlawful acts in violation of this section, or when a notice of hearing has been issued, the New York State Department of State may request in writing the production of relevant documents and records as part of its investigation.  If the person upon whom such request was made fails to produce the documents or records within thirty days after the date of the request, the New York State Department of State may issue and serve subpoenas to compel the production of such documents and records.  If any person shall refuse to comply with a subpoena issued under this section, the New York State Department of State may petition a court of competition jurisdiction to enforce the subpoena and such sanctions as the court may direct.

            [(a)] (b) Upon allegation(s) of non-compliance with applicable law, or upon its own initiative, the [board] New York State Department of State may conduct an inquiry as to the sufficiency of any alleged violations. If the [board] New York State Department of State, finds any grounds to indicate that a violation(s) may have occurred, the [board] New York State Department of State may, as the public interest demands, send a notice of apparent liability to the alleged violator seeking a response.

            [(b)] (c) The [board] New York State Department of State shall mail a copy of the notice of apparent liability to the last known business address of the alleged violator. Mailing of the notice shall be deemed receipt thereof.

            [(c)] (d) The alleged violator shall respond to the notice no later than 35 days from the date the [board] New York State Department of State mailed such notice.

            [(d)] (e) The [board] New York State Department of State will evaluate such response, conduct a review based on the evidence before it, and provide notice of its decision to the alleged violator within 60 days of receipt of the response. Mailing of the decision shall be deemed receipt thereof.

            [(e)] (f) If the alleged violator disputes the [board] New York State Department of State decision, such violator may file an administrative appeal with the [board] New York State Department of State by requesting in writing an administrative hearing, within 10 days of receipt of the decision. The administrative hearing shall be subject to article 3 of the State Administrative Procedure Act (SAPA) and 19 NYCRR Part 400 with the exception of the appeal provisions set forth in 19 NYCRR 400.2(j),(k) and (l).

            [(f)] (g) If the alleged violator does not file an administrative appeal by requesting a hearing in writing within 10 days of receipt of such decision, the initial decision of the [board] New York State Department of State is deemed the final [board] decision and the alleged violator shall remit to the New York State Department of State [board] a fine payable to the [“State Consumer Protection Board”] "New York State Department of State, Division of  Consumer Protection" as set out in the initial decision of the [board] New York State Department of State, within 10 days of receipt of the initial decision of the [board] New York State Department of State. An aggrieved party shall have the right to challenge the final agency determination by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules.

            [(g)] (h) If an administrative appeal is properly filed, the [board] New York State Department of State shall stay any fine pending the decision of such appeal.

            [(h)] (i) During the hearing proceeding, the board may establish evidentiary rebuttable presumption(s).]

             [(i)] (j)  Any facts or evidence received by the [board] New York State Department of State may be used in any proceeding and shall be afforded appropriate consideration by the presiding officer. All evidence shall be kept in the custody of the presiding officer.

            [(j)] (k) Where it is determined after the administrative hearing that the alleged violator has violated one or more provisions of these regulations, the presiding officer may assess a fine not to exceed $11,000 for each violation.

            [(k)] (l) If the alleged violator requests an administrative appeal pursuant to subdivision [(e)] (f) of this section and an administrative hearing is held, the administrative hearing decision shall constitute a final [board] New York State Department of State decision. Violators shall remit to the [board ] “New York State Department of State”  a fine payable to the [“State Consumer Protection Board”] "New York State Department of State, Division of Consumer Protection" as set out in the administrative hearing decision within ten [(10)] days of the receipt of such decision. An aggrieved party shall have the right to challenge the final agency determination by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules.

            [(l)] (m) If the alleged violator does not respond to the notice of apparent liability within 35 days of receipt of the notice pursuant to subdivision [(c)] (d) of this section, said notice of apparent liability shall constitute the final [board]  New York State Department of State decision. The alleged violator shall remit to the board a fine payable to the [“State Consumer Protection Board”] "New York State Department of State, Division of Consumer Protection" as set out in the notice of apparent liability, within 60 days from the date the [board] New York State Department of State mailed such notice. An aggrieved party shall have the right to challenge the final agency determination by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules.

Section 400.8 of Title 19 NYCRR is amended to read as follows:

§ 400.8 Evidence and proof

           (a) The strict rules of evidence do not apply with respect to administrative adjudicatory proceedings.

           (b) Any facts or evidence received by the New York State Department of State may be used in any proceeding and shall be afforded appropriate consideration by the presiding officer. All evidence shall be kept in the custody of the presiding officer.