As promised by the Czar, the Duchess is here to break down yet another, although proposed, New York Telemarketing Law. This feels a little bit like deja’vu as if only last month I brought you a new telemarketing law out of New York.

Oh right, that is because I did, read about it HERE.

The current proposed Senate Bill S1536, in all its glory HERE, will fall under 399-P of the General Business Law as opposed to the most recent law change that is a part of Section 399-Z, which is specific to Telemarketing, etc.

As the Czar already pointed out we have yet another definition to add to the mix of “automatic dialing device” under the proposed bill which reads as “equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, except for equipment that requires a human to dial or place each individual call one call at a time, and requires such human to then remain on each call”

A few other definitions that jumped out at me include:

“robocall” means a call made, including a text message sent, to any telephone number owned by a person or entity in the state:

(1) using an automatic dialing device; or

(2) using an artificial or prerecorded voice;

Seem pretty straight forward but note they are including text along with calls, which is in line with current state law.

“call mitigation technology” means technology that identifies an incoming call or text message as  being, or as probably being, an unwanted robocall, and, on that basis, blocks the call or message,  diverts it to the called person’s answering system, or otherwise prevents it from being completed to the called person, except that it permits a call or text so identified to be completed when it is identified as being made by a law enforcement or public safety entity;

Does this definition suggest converting the call to a ringless voicemail? Didn’t Queenie just blog about the FCC killing ringless voicemails? That has me scratching my head a bit. Also charging the carrier service providers to offer technology to consumers to block these calls along with being mind readers and decided for you which call you would like to have blocked.

“prior express consent” for a call means that the purpose of the call must be closely related to the purpose for which the telephone number was originally provided by the called party. A call by a non-profit organization which is federally tax exempt pursuant to 26 U.S.C. 501(c), to a member who had joined such organization or to the household of such a member, is presumed to be closely related. A customer’s prior express consent can be revoked by the customer at any time in any reasonable manner, regardless of the context in which the owner or user of the telephone provided consent.

This will shake things up in the world of all things marketing, consumer consent will only extend to the closely related purpose, so say if they are inquiring about solar, you may not market them later down the line for auto insurance. Most would argue those are not closely related.

Let’s take a deeper dive into “call mitigation technology” and the obligations it will impose upon telephone service providers.

4-b. (a) A telephone service provider that provides telephone service to customers residing in the state shall make call mitigation technology available to any such customer, upon request, and at no additional charge. Such provider shall also offer to any such customer the ability to have the provider prevent calls and text messages identified as originating from a particular person from being completed to the called person, upon request, and at no additional charge.

(b) The department, in consultation with the department of public service, shall promulgate regulations to implement the requirements of this subdivision, including, if appropriate, a reasonable delay in requiring implementation and offering of call mitigation technology if for good cause, taking into account the consumer protection purposes of  this section, and including procedures for addressing incidents in which a call wanted by the customer is prevented from reaching the customer. The department may also promulgate regulations allowing for the requirements of this subdivision to be waived for existing network facilities in instances where the telephone service provider can reasonably demonstrate that call mitigation technology cannot feasibly be implemented on such facilities due to technological limitations, until such time as it can be feasibly implemented.

Maybe this type of intuitive technology exists but I would have to think if it doesn’t, it would be a big undertaking for companies who are obligated to meet these standards and offer it for FREE to consumers. I guess they are being generous by allowing for reasonable delays. A whole new tech build-out seems like a valid reason for the delay.

The proposed bill is also calling for increased fines around violating specific sections, some to the tune of five to ten thousand dollars per violation! And if a plaintiff is successful in their pursuit of a violation under the purposed bill they WILL be awarded reasonable attorney’s fees.

Finally, it calls for an ongoing annual report from the department of state to be sent to the governor, residing president of the senate, the speaker of the assembly, minority leader of the senate, and the minority leader of the assembly which will include the following:

(1) A list of telephone service providers operating in this state, and the status of their implementation and offering of call mitigation technology;

 (2) Information regarding delays in the implementation and offering of call mitigation technology, and the reasons for such delays;

 (3) Recommendations for additional measures to protect customers from illegal robocalls;

 (4) The number of illegal robocalls made to telephone numbers owned by a person or entity in this state, to the extent that such information is known; and

 (5) Any other information or recommendations relating to the issue of robocalls that the department judges to be pertinent or necessary

Again, this is a proposed bill that was introduced on 1/12/2023. We will continue to keep our eye on this one and the Maryland bill the Czar blogged about this morning.