any natural person who:
(1) resides in this
(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.
Doing business in this State
means conducting telephonic sales calls:
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.
Goods and services means any
goods and services, including any real property or any tangible personal
property, and services of any kind.
term goods shall be the same as defined under section 2-105 of the New York
Uniform Commercial Code.
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.
(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.
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.
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.
(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.