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PART 4602 GENERAL PROVISIONS
 

PART 4602 GENERAL PROVISIONS

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    PART 4602 GENERAL PROVISIONS PART 4602 GENERAL PROVISIONS Document Transcript

    • (PARTS 4602 – 4604 DO NOT CALL REGULATIONS) PART 4602 GENERAL PROVISIONS PART 4603 ENFORCEMENT PART 4604 CONSTRUCTION PART 4602 GENERAL PROVISIONS (Statutory Authority; Executive Law § 553; General Business Law § 399-z) Sec. 4602.1 Establishment of a no telemarketing sales calls statewide registry 4602.2 Enrollment on the no telemarketing sales calls statewide registry 4602.3 Eligible consumers and necessary information 4602.4 Intended use of information 4602.5 Telemarketer considerations for enrolled consumers 4602.6 Definitions § 4602.1 Establishment of a no telemarketing sales calls statewide registry. (a) The State Consumer Protection Board (“the agency”) shall establish and maintain a no telemarketing sales calls statewide registry, which shall be called “the New York State 'Do Not Call' Registry” (hereinafter referred to as “the registry” or “the 'do not call' registry”). (b) The 'do not call' registry shall contain a list of the name, telephone number(s), postal zip code, and date of registration of any consumer who has indicated by any method prescribed in these regulations that he or she does not wish to receive unsolicited telemarketing sales calls to a consumer's telephone number(s). (c) The registry is open to all natural persons who: (1) reside in this state; and (2) have telephone service in this state that receives incoming calls. § 4602.2 Enrollment on the no telemarketing sales calls statewide registry. (a) The agency shall establish, maintain, and publish a toll-free number for consumers to call to notify the agency that the consumer wishes to be included on the registry. 1
    • (b) The agency shall establish and maintain Internet access for consumers to notify the agency that the consumer wishes to be included on the registry. The web site shall be published to the general public. (c) The agency shall establish and maintain a mailing address and facsimile number for consumers to mail or fax the agency to notify it that the consumer wishes to be included on the registry. The mailing address and facsimile number shall be publicized to the general public. (d) Enrollment on the registry shall be free to all consumers who reside in New York State. (e) Any consumer who wishes to be removed from the registry may contact the agency in writing or via an electronic signature in compliance with the Electronic Signature and Records Act (“ESRA”) or other applicable law. (f) The agency shall update such registry at least quarterly. (g) Enrollment on the registry shall be for a term of three (3) years from the start of the quarter following date of enrollment (e.g., if the date of enrollment is April 1, 2001, then the start of the next quarter following the date of enrollment would be July 1, 2001 and the three-year term calculated from that date). The agency shall use its best efforts to notify enrolled consumers prior to the end of the three-year enrollment term of the option to re-enroll. Those consumers who do not re-enroll prior to the end of the three-year enrollment term shall be removed from the registry. (h) All information or data received by the agency from a consumer related to enrollment on the registry shall be confidential and afforded reasonable privacy protections except as necessary to accomplish the purposes and administration of the registry. § 4602.3 Eligible consumers and necessary information. 2
    • (a) An eligible consumer is (1) a natural person who: (i) resides in this state; and (ii) has telephone service in this state which receives incoming calls; and (2) is either: (i) the named subscriber on the telephone bill for the telephone number(s) in question; (ii) the spouse of the subscriber; (iii) a guardian of the subscriber; (iv) a person who has a power of attorney from or is an authorized agent of the subscriber; or (v) a family member of the subscriber who is over the age of eighteen, who lives in the same residence as the subscriber. No corporation, company, firm, partnership, other business entity or fictional organization is eligible to enroll in the registry. (b) Only an eligible consumer may enroll in the registry. An eligible consumer shall be required to give the agency specific personal information to enroll on the registry including, but not limited to, their: (1) name; (2) address; (3) telephone number(s) to be covered; and (4) electronic mail (or "e-mail") address, if available. Only a consumer’s name, telephone number, postal zip code, and date of registration shall be listed on the registry. § 4602.4 Intended use of information. (a) All information received by the agency relating specifically to the registry shall be for the sole purpose of promoting and furthering the statutory mandates of a no telemarketing sales calls statewide registry. (b) Use of registry information in a manner not permitted by these regulations, regardless of the manner in which the registry information is obtained, shall be subject to the penalty and enforcement provisions contained in these regulations. Each telephone call to a telephone number listed on the registry shall be deemed a separate occurrence. § 4602.5 Telemarketer considerations for enrolled consumers. 3
    • (a) The agency shall update the registry at least quarterly, and make such registry available to telemarketers for a fee as prescribed by the agency in this section. (b) A telemarketer may secure access to the registry by remitting a fee of eight hundred dollars ($800.00) per calendar year to the agency and by providing their legal name (including d/b/a, if applicable), telephone number(s), mailing address, name and address of the telemarketer’s registered agent in New York, name and telephone number of the representative of the telemarketer, e-mail address, and a description of the nature of the telemarketer’s business. Upon remitting such fee, a telemarketer shall have unlimited access to the registry via the Internet or CD-ROM. (c) A telemarketer shall remit any applicable fees at the time of a request for the registry and shall make such remittance payable to the "State Consumer Protection Board." (d) The agency shall make the registry available by electronic Internet access or CD-ROM format to a telemarketer that has remitted the eighteight hundred dollar ($800.00) fee and, for an additional fee, in such other non-standard formats (i.e., by specialized sort, comma delimited, etc.) as the agency may deem appropriate. (e) No telemarketer or person shall share any registries or information contained on such registries with any other unrelated person or firm or any related business entity or other business organization of the telemarketer or related to the telemarketer or the telemarketer’s agent, including, but not limited to, a parent corporation, subsidiary, partnership, company, other corporation, affiliate, independent contractor, agent or any non-W-2 Employee of the telemarketer, except as provided for below 1. When any person or business entity involved in sharing or receiving the registries or information contained on the registries has purchased a copy of the registry from the Consumer Protection Board, or 4
    • 2. When a person or business entity purges, scrubs, cleanses or otherwise alters prospect lists using the registries or information contained on the registries, and then resells or redistributes such lists, as well as all receiving persons or entities purchase a copy of the registry from the Consumer Protection Board. (f) No telemarketer or seller shall make or cause to be made any unsolicited telemarketing sales call to any consumer more than thirty (30) days after the customer's telephone number(s) and name appear on the then current registry. A telephone number shall be the primary designation on the registry for a telemarketer. (g) Every obligation or duty under these rules imposes an obligation of good faith in its performance and compliance. § 4602.6 Definitions. (a) "Consumer" means any natural person who: (1) resides in this state; and (2) has telephone service in this state that receives incoming calls. The term “customer” shall have the same meaning as the definition of “consumer” defined herein. (b) "Doing business in this state" means conducting telephonic sales calls: (1) from any location within New York State; or (2) from a location outside of New York State to consumers residing and having a telephone number in this state. (c) "Goods and services" means any goods and services, including any real property or any tangible personal property, and services of any kind. The term "goods" shall be the same as defined under Section 2-105 of the New York Uniform Commercial Code. The term "services" shall be defined as the duty, labor, obligation, act, or commitment to be rendered by one person to another for profit, whereby the telemarketer offers, seeks to offer, or contracts to offer any performance of labor or other such act for the benefit of the consumer, or at the consumer's direction or authority. 5
    • (d) "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 § 171-a (1) of the Executive Law and registered pursuant to § 172 of the Executive Law, religious corporations as defined in § 2 of the Religious Corporations Law, political parties as defined in § 1-104 (3) of the Election Law, and political committees as defined in § 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) "Telemarketing" means any plan, program or campaign which is conducted to induce 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 customer 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) "Telemarketing sales call" means a telephone call made by a telemarketer to a consumer for the purpose of inducing payment or the exchange of any other consideration for any goods or services, where the consumer’s receiving device is a telephone. PART 4603 ENFORCEMENT (Statutory Authority; Executive Law § 553; General Business Law § 399-z) Sec. 4603.1 Enforcement and violations 4603.2 Exceptions 4603.3 Safe harbor provisions 6
    • § 4603.1 Enforcement and violations. (a) No telemarketer or seller may make or cause to be made any unsolicited telemarketing sales call to any consumer more than thirty (30) days after: (1) the then current registry is published or made available by the agency; and (2) the customer's telephone number(s) appears on the then current registry. Each call to a telephone number shall be deemed a separate occurrence for purposes of the penalty and enforcement provisions of these regulations. (b) Upon allegation(s) of non-compliance with applicable law, or upon its own initiative, the agency will conduct an inquiry as to the sufficiency of any alleged violations. If the agency finds any grounds to indicate that a violation(s) may have occurred, the agency may, as the public interest demands, send a notice of apparent liability to the alleged violator seeking a response as to why the agency should not find in favor of the complainant. The agency shall mail a copy of such notice by certified mail, return receipt requested, to the last known business address of the alleged violator. Mailing of the notice shall be deemed receipt thereof. (c) The alleged violator shall respond to the notice of apparent liability not more than thirty (30) days from the date the agency mailed such notice. The agency will evaluate such response, conduct a review based on the evidence before it, and communicate its decision to the complainant and alleged violator. If either the complainant or alleged violator disputes the decision, an administrative hearing shall be conducted by the agency, and parties notified, in writing, of the determination. (d) The agency may establish evidentiary rebuttable presumption(s) in any proceeding(s) under these regulations. (e) Any proceeding conducted pursuant to these rules shall be subject to the State Administrative Procedure Act (“SAPA”). 7
    • (f) Any facts or evidence received by the agency may be used in any proceeding and shall be afforded appropriate consideration by the administrative law judge or other such presiding officer. All evidence shall be kept in the custody of the agency. § 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; (2) in connection with an established business relationship, which has not been terminated by either party; (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; or (4) in which the sale of goods and services is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the telemarketer or a meeting between the telemarketer and the customer. (b) "Established business relationship" shall mean the existence of an oral or written arrangement, agreement, contract, or other such legal state of affairs between the telemarketer and an existing customer where both parties have a course of conduct or established pattern of activity for commercial or mercantile purposes and for the benefit or profit of both parties. A pattern of activity does not necessarily mean multiple previous contacts. The "established business relationship" must exist between the existing customer and the telemarketer directly, and does not extend to any related business entity or other business organization of the telemarketer or related to the telemarketer or the telemarketer’s agent including, but not limited to, a parent corporation, subsidiary partnership, company, or other corporation or affiliate. (c) "Existing customer" shall mean an individual who has entered into an arrangement, agreement, contract, or other such legal state of affairs between the telemarketer and the consumer where the payment or 8
    • exchange of consideration for any goods or services has taken place within the preceding eighteen (18) months, or has been previously arranged to take place at a future time. (d) “Person” shall mean any natural person, association, partnership, firm, corporation, and its affiliates or subsidiaries or other business entity. § 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) the person has obtained a copy of an updated, quarterly 'do not call' registry and has established and implemented written policies and procedures related to the requirements of these regulations; (2) the person has trained his or her personnel in the requirements of these regulations; (3) the person maintains records demonstrating compliance with this section and the requirements of these regulations; and (4) any subsequent unsolicited telemarketing sales call is the result of an error. § 4603.4 Adverse decisions and appeal of adverse decisions. (a) Where it is determined that any person has violated one or more provisions of these regulations or applicable state law, the executive director of the agency, or any person so designated by him or her, may assess a fine not to exceed two thousand dollars ($ 2,000) for each violation. (b) Any alleged violator found to be in violation of these regulations or applicable state law may file an administrative appeal, by certified mail return receipt requested, within twenty (20) days of a decision, to the executive director of the agency, or to any person so designated by him or her. 9
    • (c) If an administrative appeal is properly filed, the agency shall stay any fine pending the decision of such appeal. (d) The executive director of the agency, or any person designated by him or her, shall hear and decide any appeal as soon as practicable. If the appeal, or any part thereof, is found in the alleged violator's favor, that part of the notice of apparent liability shall be dismissed with prejudice. (e) Any appeal found against the alleged violator shall constitute a final agency decision. If no appeal has been taken within the prescribed time period, the initial determination of the agency shall constitute a final agency decision. Accordingly, any violator shall remit to the agency such fine, with interest, within ten (10) days of the agency’s decision or at such time as the agency shall prescribe if good cause is shown. Any alleged violator found to be in violation of the these rules or regulations or applicable state law shall make such fine payable to the "State Consumer Protection Board." PART 4604 CONSTRUCTION (Statutory Authority; Executive Law § 553; General Business Law § 399-z) Sec. 4604.1 Separability clause, construction 4604.2 Effective date § 4604.1 Separability clause, construction. (a) If any part or provision of these regulations or the application thereof to any person or circumstances be adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in the controversy in which such judgment shall have been rendered. Such controversy or judgment shall not affect or impair the validity of the remainder of these regulations or the application thereof to other persons or circumstances. 10
    • (b) For purposes of these regulations, any act or activity of the executive director of the agency, any person designated by him or her, or other such employee of the agency shall be deemed an act or activity of the agency. § 4604.2 Effective date. These regulations shall take effect April 1, 2001. 11