Petition for Writ of Certiorari — Kaplan v. Ludwig

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0 11485 MAR 1 1 2002

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Martin C. Kaplan,

Petitioner,

Robert P. Ludwig

and

Kustom Karpet Kleaners, Inc.

d/b/a Custom Carpet Cleaners,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of New York,

Appellate Division, Fourth Judicial Department

PETITION FOR WRIT OF CERTIORARI

MARTIN C. KAPLAN

Petitioner pro se

126 Greystone Lane, #5

Rochester, NY 14618

Tel: (585) 473-6369

Ls Sit hd lens Ce

Question Presented

Introductory Statement: The court below held

that a single telephone call, in violation of several

provisions of federal statute 47 U.S.C. 227 and

regulations enacted thereunder (47 CFR 64.1200),

amounts to a single violation of federal law. Petitioner

had argued that this amounts to several violations.

The statute calls for minimum damages for each

violation of the statute or of the regulations —

consequently, the damages are determined by the

number of violations.

Question: When a single act is in violation of two

or more provisions of 47 U.S.C. 227 and/or

regulations enacted thereunder, are there two or more

violations, or only one?

List of Parties

The caption on the cover page contains the names

of all parties to the proceeding.

Petitioner is not a corporation.

Table of Contents

Question Presented...............:c:seeseesessssreeeeeeeteeentes sees i

List Of Parties .............cscccsecseeseceseceeeeneceeeseeeeeeanseseeses il

Opinions Below ...........----:+++essssseeeeeeenne senpansseaniees l

JUPiSGiction ...............ccsccseeeeceeeeceeeeeeeeeseceeeneeeeenenseeees ]

Statutes and Regulations Involved ...............::::sss5+++ 2

Statement of the Case..............ccecseeneeeeeeeeeeeneeeeseeesees 2

Reasons for Granting the WTit.............-:.-:essseseeeeeeeeey 5

Point 1 The court below has knowingly disregarded

precedent of this Court ...........:0scssssrrrrereees 5

Point 2 Courts disagree on the federal question...... 7

Point 3 Summary disposition is appropriate .......... 7

Point 4 Reversal and remand to a different judge

below are merited ............-.:.eceeeeereeeeeeeeneees 8

COMClUSION .............2ececeecesceeeeceecececeeeeeeeeeeeeeeaneenenes 10

Appendix

Appellate Division denial of motion for leave to appeal

to New York Court of Appeals (12/21/01)......... A-1

Appellate Division order below, KAPLAN v. LUDWIG,

286 A.D.2d 970 (4t Dept 2001) (9/28/01) ....... A-2

Appellate Division memorandum, made a part of

order below, KAPLAN v. LUDWIG, 286 A.D.2d 970

(4% Dept 2001) (9/28/01) ......-----:::eeeerrrreeeeeeeess A-3

Wayne County Court decision (12/4/00).............:. A-4

Walworth Town Court, amended final decision

(6/6 /OO) ..........0cccceesseeeeessreeeeessnneeeteteseeseneeneeeees A-6

Walworth Town Court, first final decision

(3/21 /OO) ..........eesecceeesssreceessrceensrseeseensnesenes A-11

Statutes and Regulations involved ............-.-++++++ A-12

AT U.S.C. 227 .....ccccccccccscccsccsccccccecssccccscscsercceces A-12

47 CFR 64.1200...........ccceceececeeeeeeeeeeeeeeeeneeeeeeees A-25

New York General Business Law §399-p........--- A-30

ill

Table of Authorities

Cases

Adamo v. AT&T, 2001 Ohio App. LEXIS 4989 (Nov. 8,

ERS TERR eee lee eee er RRP PRS RL AR 7

Blockburger v. United States, 284 U.S. 299 (1932)

Mpepebiaashiddatsanedbiintialdkvana deinen anand passim

Charvat v. Colorado Prime, 1998 WL 634922, 1998

COR FI, See PRUNE Wdthntcntnsnunicessecccossoinejenssisins 7

Hudson v. Louisiana, 450 U.S. 40 (1981) .................. 6

Iannelli v. United States, 420 U.S. 770 (1975)............ 4

Kaplan v. Life Fitness Center, No. 1999 SC 11448

(Rochester City Ct., December 13, 1999)............. 7

Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984)

Sipiabinahoimsssatiaalaieaauetadaitaalinieantamianmimmibuaamenes 6

Lovgren v. Byrne, 787 F.2d 857 (3rd Cir. 1986)..... 4,5

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

PUNIIIIE cist arsnatsiainiaidhnsddnaetsamiaiasusmaanniscibagabiamenaaninas 6

Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974)

Rutledge v. United States, 517 U.S. 292 (1996)...... 4,6

Szefczek v. Hillsborough Beacon,

286 N.J.Super. 247, 668 A.2d 1099 (1995).......... 7

Whalen v. United States, 445 U.S. 684 (1980) ....... 4,6

William E. Arnold Co. v. Carpenters District Council,

iE pedicscckcta dinsinindiedindeniacbaktabiasaniaes 6

Worsham v. Nationwide Ins. Co., 138 Md. App. 487,

772 A.2d 868 (Md. Ct. Spec. App. 2001) .............. 7

Statutes, Rules and Regulations

EF re ited esa kctdabennnipectisanentiaexs 2, 3, 4, 7

Ae Pas TEE binkdaatanidiciwacarcneseninmnidaahiaandaadahan passim

New York General Business Law §399-p....... 2,3,4,9

Other Authorities

Stern, Gressman, Shapiro & Geller, Supreme Court

Practice, (7th ed. 1993), page 2OB............0.s0.0..00-. 6

IN THE

Supreme Court of the United States

PETITION FOR WRIT OF CERTIORARI

Petitioner Martin C. Kaplan respectfully prays that

a writ of certiorari issue to review the judgment below.

Opinions Below

The opinion of the highest state court to review the

merits appears at Appendix A-3 to the petition and is

reported at 286 A.D.2d 970; 730 N.Y.S.2d 765 (4th

Dept 2001).

The opinion of Wayne County Court appears at

Appendix A-4 to the petition and is unpublished.

The first final decision, without opinion, of

Walworth Town Court appears at Appendix A-11 to

the petition and is unpublished. An amended final

decision, adding an opinion, appears at Appendix A-6

to the petition and is unpublished.

Jurisdiction

The highest state court to consider the case

entered a decision on the merits on September 28,

2001. A copy of that decision appears at Appendix A-

2 to A-3. No rehearing was requested.

A timely motion for leave to appeal to the New York

Court of Appeals was denied on_the following date:

December 21, 2001, and a copy of the order denying

leave to appeal appears at Appendix A-1.

The jurisdiction of this Court is invoked under 28

U.S.C. 1257(a). -

28 U.S.C. 1257(a) confers jurisdiction because

petitioner has exhausted the state appellate process,

and the question on appeal concerns a claim under

federal statute 47 U.S.C. 227.

If a fuller explanation be required that petitioner

has exhausted the state appellate process, New York

law generally allows appeal from the Appellate

Division either as of right or by permission. New York

Civil Practice Law & Rules (CPLR) §5601, which

allows appeal as of right, is unavailable to petitioner

because: the case originated in City Court (CPLR

§5601(a)); the question on appeal does not involve

constitutional issues (CPLR §5601(b)); there has been

no order granting a new trial (CPLR §5601(c)); and

there has been no Appellate Division order on a prior

appeal (CPLR §5601(d)). CPLR §5602 allows appeal to

the New York Court of Appeals by permission of either

the Appellate Division or the Court of Appeals.

Permission of the Court of Appeals is unavailable

because the case originated in City Court (CPLR

§5602(a)(1)), and no party is a governmental entity

(CPLR §5602(a)(2)). Petitioner did seek permission of

the Appellate Division, as allowed by CPLR §5602(b).

Permission was denied by a decision entered

12/21/01, which appears at Appendix A-1 to the

petition.

n | ns Involv

47 U.S.C. 227, 47 CFR 64.1200, and New York

General Business Law §399-p are the statutes and

regulations involved. They are lengthy, and appear in

the Appendix at A-12 ff, infra, under Court Rule 14(f).

Statement of the Case

Petitioner sued for statutorily specified damages

for respondents’ single telephone solicitation in

violation of numerous provisions of federal and state

law.

The facts are undisputed. Defendants delivered a

prerecorded telephone solicitation to plaintiff without

prior consent (violating 47 U.S.C. 227(b)(1)(B)). The

message didn't disclose the caller’s address, telephone

number, or full name (violating 47 CFR 64. 1200(d)(1),

(d)(2), (e)(2){iv), New York General Business Law §399-

p(3)(a)). Defendants had no available written policy

for maintaining records of persons asking not to be

called again (violating 47 CFR 64. 1200(e)(2)(i)).

47 U.S.C. 227(b)(3)(B) provides $500 statutory

damages for each violation of federal statute or

regulation. At trial (Walworth Town Court), plaintiff

sought $500 damages for each federal provision

violated, even though there was just one telephone

call. (Plus $50 state law statutory damages under

N.Y. Gen Bus Law §399-p(9).) Plaintiff raised the

federal question during argument in open court. “The

fact that these multiple violations resulted from a

single phone call does not preclude awarding

cumulative damages for each violation. The rule on

multiple violations resulting from a single act was

stated by the U.S. Supreme Court in Blockburger v.

United States, 284 U.S. 299, 304 (1932). * ** |] have

listed 6 distinct violations in Table 1, which qualify

under 47 USC 227(b)(3)(B) for $500 minimum

statutory damages for each violation. * * * Further,

the violations listed in Table 1 also qualify as distinct

violations under the Blockburger rule....” (Record at

R13) Additionally, plaintiff submitted during trial a

written citation of the pertinent language from

Blockburger, exhibited at R63 of the Record.

Walworth Town Court dismissed (see decisions at A-

11 and A-6, infra), not reaching the federal question.

On appeal to Wayne County Court, petitioner

again raised the federal question. “Although the case

involves a_ single telephone solicitation, that

solicitation involved several violations of law, each

carrying a minimum penalty. (See Points 3, 5) The

question of whether multiple violations result in

cumulative penalties, even though resulting from a

single act, was answered by the U.S. Supreme Court

in Blockburger, infra.” (Plaintiff's brief to County

Court, Point 4, footnote omitted) County Court

awarded $50 damages for state law violation, but

nothing for federal violation, and did not reach the

federal question. (See decision at A-4 ff, infra)

On higher appeal, the Appellate Division of New

York’s Supreme Court added $500 damages for one

federal law violation, bringing the total damages to

$550. The Appellate Division found violation of three

federal law provisions argued by plaintiff: 47 U.S.C.

227(b)(1)(B), 47 CFR 64.1200(e)(2)(i), and (e)(2)(iv).!

However, the Appellate Division held that this

amounted to just one federal violation.2 Point 5 in

plaintiffs brief below argued the federal question at

length, consuming 4 pages. “The question of whether

the multiple violations yield cumulative damages,

even though resulting from a single act, is answered

in the following sub-points (A) through (E). Briefly,

express statutory intent is controlling regarding

cumulative damages (Point 5(C)), while absent express

intent the controlling precedent is Blockburger (see

Point 5(A), next).” (Plaintiff's appeal brief to Appellate

Division, Point 5) At oral argument, the court’s sole

question concerned the federal question. Plaintiff

answered by citing and explaining the rule of

construction in Blockburger. Plaintiff's brief also cited

precedents that followed Blockburger: Iannelli v.

United States, 420 U.S. 770 (1975), Footnote 17;

Rutledge v. United States, 517 U.S. 292, 297 (1996);

Whalen v. United States, 445 U.S. 684, 691 (1980);

and Lovgren v. Byrne, 787 F.2d 857, 863 (34 Cir.

1986).

1 The court also cited 47 U.S.C. 227(b)(2)(B), which was not

argued by plaintiff, and somewhat perplexes petitioner.

2 The Appellate Division decision appears at A-3, infra. The

salient language is:

“We modify the order of County Court and the judgment of

Town Court by awarding plaintiff, as against both

defendants, judgment in the principal sum of $550, plus

interest commencing from March 21, 2000, together with

costs and disbursements. Plaintiff established a violation of

both the Federal statute and regulations and the State

statute (see, 47 USC § 227 [bj [1] [B]; [2] [B]; 47 CFR

64.1200 [e] [2] [i],{iv]; General Business Law § 399-p{3] [a}).”

(Emphasis added)

Plaintiff requested permission to appeal on the

federal question, to the Court of Appeals of the State

of New York. Permission was denied (see p. A-1,

infra). This exhausted the state appellate process.

Reasons for Granting the Writ

Point1 | The court below has knowingly

disregarded precedent of this Court

The decision of the court below, finding that

violation of several federal law provisions amounts to

just one violation, is contrary to this Court’s

precedent. Petitioner’s brief and oral argument below

addressed this issue at length. Yet, the court below

decided contrary to this Court’s precedent, offering no

alternative precedent, and not even stating grounds.

Such disregard for this Court must not be allowed to

stand, lest it be invoked as more “on point” than the

Court’s own precedents. Moreover, flagrant disregard

for this Court’s decisions must be discouraged.

“The applicable rule is that, where the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to

determine whether there are two offenses or only one

is whether each provision requires proof of an

additional fact which the other does not.” (Blockburger

v. United States, 284 U.S. 299, 304 (1932))

“The rule of construction which the courts have

utilized in answering this kind of question was

announced in Blockburger v. United States *** [Note

4:] Where the provisions at issue are not statutes, but

regulations, we see no reason for a different analysis.”

(Lovgren v. Byrne, 787 F.2d 857, 863 (3"4 Cir. 1986))

Petitioner’s brief below also cited other cases

where the Court followed Blockburger,? declaring it

3 “For over half a century we have determined whether a

defendant has been punished twice for the ‘same offense’ by

applying the rule set forth in Blockburger v. United States, 284

ss)

well-settled law. Further, the brief carefully applied

the Blockburger rule to the various violations alleged,

demonstrating that they all satisfy the Blockburger

rule, and thus must be considered distinct violations

with cumulative damages.

Clearly, the court below simply refused to follow

Blockburger, without even a dissent among the 5

justices.

Flagrant disregard for this Court’s precedent

erodes the authority of the Court, and sows confusion

by creating conflicting precedent. This is a strong

reason for granting certiorari.

“A conflict between a decision of the highest

state court and that of the Supreme Court on a

matter of federal law is a strong reason for the

granting of certiorari. See Hudson v. Louisiana,

450 U.S. 40, 42 (1981); William E. Arnold Co. v.

Carpenters District Council, 417 U.S. 12, 14

(1974); Pittsburgh v. Alco Parking Corp., 417 U.S.

369, 371-72 (1974). Note 78: See also Limbach v.

Hooven & Allison Co., 466 U.S. 353, 362 (1984),

where the Court stated: ‘We are concerned with

federal issues and a contention that a state court

disregarded a federal constitutional ruling of this

Court.’” (R.L. Stern, E. Gressman, S.M. Shapiro &

K.S. Geller, Supreme Court Practice, (7% ed.

1993), page 208. Emphasis added.) :

For reviewability, the court below must have

decided the federal question, “but it is not necessary

that the ruling shall have been put in direct terms. If

the necessary effect of the judgment has been to deny

the claim, that is enough.” (New York ex rel. Bryant v.

Zimmerman, 278 U.S. 63, 67 (1928))

U.S. 299, 304 (1932).” (Rutledge v. United States, 517 U.S. 292,

297 (1996)) And Whalen v. United States, 445 U.S. 684, 691

(1980), notes that the Blockburger rule has been “consistently

relied on ever since” it issued.

Point2 Courts disagree on the federal question

Lower courts have come down on both sides of the

federal question.t The opinions show failure to

identify Blockburger as relevant precedent, unlike the

instant case where Blockburger was vigorously called

to the attention of the court below. Lower courts are

treating the federal question as a matter of first

impression, or sometimes citing one-another as

precedent. Halting this growing confusion and

conflict in the lower courts is another reason to grant

certiorari. ,

Point3 Summary disposition is appropriate

The deviation of the court below from Blockburger

is so apparent that summary disposition is

appropriate. The facts of the case are unnecessary to

recognize failure to follow Blockburger. The decision

below finds violation of 47 U.S.C. 277(b)(1)(B), 47 CFR

64.1200(e)(2)(i), and (e)(2)(iv). Each of these three

4 Other decisions finding a single violation for a telephone call

in violation of multiple provisions of 47 U.S.C. 227 and 47 CFR

§64.1200 include: Worsham v. Nationwide Ins. Co., 138 Md. App.

487, 772 A.2d 868 at footnote 5 (Md. Ct. Spec. App. 2001), cert.

den’d 365 Md. 268, 778 A.2d 383 (“We find the cases awarding

the monetary remedy on a ‘per call’ basis rather than a ‘per

violation’ basis more persuasive.”); Charvat v. Colorado Prime,

1998 WL 634922, *5, 1998 Ohio App. LEXIS 4292, *13

(“compensation should be based on the number of telephone

calls”); and Szefczek v. Hillsborough Beacon, 286 N.J. Super. 247,

668 A.2d 1099 (1995) (finding violation of both 47 CFR

§64.1200(e)(2)(ii) and (e)(2)(iii), but awarding only $500 per call;

the statute specifies damages of $500 per “violation,” implying

that the court found one violation per call).

Decisions finding multiple violations by a single telephone

call include: Adamo v. AT&T, 2001 Ohio App. LEXIS 4989 (Nov.

8, 2001) (affirming award of damages for violation of both 47

U.S.C. 227 and damages for violation of 47 CFR 64.1200); and

Kaplan v. Life Fitness Center, No. 1999 SC 11448 (Rochester City

Ct., December 13, 1999) (awarding damages for a single

telephone call of $500 for violation of 47 U.S.C. 227(b)(1)(B) plus

another $500 for violation of 47 CFR §64.1200(d)(1)).

provisions requires proof of a factual element not

required by the others, which are, respectively: (1) no

emergency nor prior express consent, (2) no written

policy available upon demand, and (3) no telephone

number nor address. Thus, the Blockburger test is

plainly satisfied, and violations of these provisions

must not be merged into a single violation. The court

below gave no reason for ignoring Blockburger.

Although a number of other interesting issues

have arisen in this action and similar actions,5 this

petition is confined to just the federal question

presented. On that question, the error of the court

below is flagrant.

Point4 Reversal and remand to a different judge

below are merited

Reversal on the federal question is appropriate, by

summary disposition as analyzed above. There need

be no new trial: the trial was without jury; the facts

are undisputed and suffice to establish the various

violations argued by plaintiff; and the damages are set

by statute. However, further judicial proceedings on

remand are needed: to assess additional damages at

$500 per violation instead of per phone call, and to

consider the additional violations alleged by plaintiff

but not reached by the court below.®

5 Various other issues have arisen in this action, or similar

actions, under 47 U.S.C. 227 in the lower courts, including: do

state courts have jurisdiction under 47 U.S.C. 227(b)(3) absent

express state legislative authorization; which statutory causes of

action pertain; does the federal law apply to intra-state telephone

calls; do the statute and regulations unconstitutionally infringe

upon freedom of speech; and what constitutes willful or knowing

violation? These questions continue to be hashed out in the

lower courts, with due respect for precedents from courts above.

6 Plaintiff argued violation of numerous federal provisions.

The court below found violation of three of those provisions, but

was silent regarding additional provisions. Presumably the court

below considered additional violations moot, having already

Petitioner asks that if summary reversal and

remand be the decision, then the remand not go to

the original trial judge. Petitioner believes the judge

demonstrated bias, and poor knowledge of both

substantive and adjective law. A few brief examples

should suffice. The trial judge actually found both a

state law violation (New York General Business Law

§399-p(3)(a)) and a federal law violation (47 U.S.C.

227(b)(1)(B)). (See decision at Appendix p. A-6 ff)

The statutes plainly call for minimum damages.’ Yet,

- the judge awarded no damages, clearly failing to

follow the plain statutory language. The judge’s

opinion was so confused as to defy concise analysis —

on appeal, the court below simply declared that

plaintiff proved violations and awarded damages, not

analyzing errors.

The trial judge also cut short plaintiffs cross-

examination of defendant Ludwig (see Record at R17)

after a few minutes, advising Ludwig that he need not

answer any further questions. Upon plaintiff's

objection, the judge explained that Ludwig need not

incriminate himself. This is an astonishingly poor

understanding of adjective law. A defendant cannot

voluntarily take the stand in his own defense, and

then invoke fifth amendment privilege to avoid cross-

examination. Further, the question propounded

asked for the name of the salesman who sold Ludwig

his autodialer. It is inconceivable how answering

could incriminate Ludwig.

The judge also accused plaintiff of contributing to

the damages, by failing to avail himself of the do not

call list provided by the federal law. However, each

telemarketer maintains a separate do not call list.

Prior to defendants making the telemarketing call at

decided damages on a per telephone call basis, rather than a per

violation basis.

7 Minimum damages of $50 for the state law violation (New

York General Business Law §399-p(9)), and $500 for the federal

law violation (47 U.S.C. 227(b)(3)(B)).

issue, there is no feasible way plaintiff could have

anticipated telemarketing from these particular

defendants and asked to be on their do not call list.

Finally, the judge issued an amended decision (see

decisions at A-11 and A-6) two months after plaintiff

filed notice of appeal (see Record at R85), adding 3

pages of opinion. The judge had no jurisdiction for

amending the decision (no party moved the court),

especially for adding grounds for the dismissal after

appeal already had been filed.

Remand to this judge would be unfair.

Conclusion

The petition for a writ of certiorari should be

granted, to resolve disparity among the lower courts,

and more importantly to correct the refusal by the

court below to follow this Court’s precedent.

Summary disposition is appropriate: reversal on

the federal question, and remand (to other than the

original trial judge) to consider additional violations

and damages in accordance with this Court's

decision.

Respectfully submitted,

Dated: March 11, 2002 MARTIN C. KAPLAN

126 Greystone Lane, #5

Rochester, NY 14618

(585) 473-6369

Petitioner pro se

Zhe WM 2 ph ea IONE NEON Ae OE SST EE

Appendix

Appellate Division denial of motion for leave to

appeal to New York Court of Appeals (12/21/01)

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

MOTION NO. 1137/01

DOCKET NO. CA 01-00183

PRESENT: GREEN, J. P., HURLBUTT, SCUDDER,

KEHOE AND GORSKI, JJ.

MARTIN C. KAPLAN, PLAINTIFF-APPELLANT,

ROBERT P. LUDWIG AND KUSTOM KARPET

KLEANERS, INC., D/B/A CUSTOM CARPET

CLEANERS, DEFENDANTS-RESPONDENTS.

Appellant having moved for leave to appeal to the

Court of Appeals from the order of this Court entered

September 28, 2001,

Now, upon reading and filing the affidavit of

Martin C. Kaplan sworn to October 23, 2001, the

notice of motion with proof of service thereof, and due

deliberation having been had thereon,

It is hereby ORDERED that the motion be, and

the same hereby is, denied.

Entered: December 21, 2001

CARL M. DARNALL, CLERK

Appellate Division order below, KAPLAN v. LUDWIG,

286 A.D.2d 970 (4'" Dept 2001) (9/28/01

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1137

PRESENT: GREEN, J. P., HURLBUTT, SCUDDER,

KEHOE AND GORSKI, JJ.

CA 01-00183

MARTIN C. KAPLAN, PLAINTIFF-APPELLANT,

ROBERT P. LUDWIG AND KUSTOM KARPET

KLEANERS, INC., D/B/A CUSTOM CARPET

CLEANERS, DEFENDANTS-RESPONDENTS.

Martin C. Kaplan having appealed to this Court

from the order of the Wayne County Court, entered in

the Wayne County Clerk’s Office on December 4,

2000, affirming the judgment of the Town Court of the

Town of Walworth dated March 21, 2000, and said

appeal having been argued by Martin C. Kaplan,

plaintiff-appellant, there being no brief or argument

on behalf of defendants-respondents, and due

deliberation having been had thereon,

It is hereby ORDERED that the order so appealed

from and the judgment of Wayne Town Court be and

the same hereby are unanimously modified on the law

by awarding plaintiff, as against both defendants,

judgment in the principal sum of $550, plus interest

commencing from March 21, 2000, together with

costs and disbursements and as modified the order

and judgment are affirmed with costs to plaintiff.

Memorandum that is hereby made a part hereof.

Entered: September 28, 2001

CARL M. DARNALL, Clerk

A-2

Appellate Division memorandum, made a part of

order below, KAPLAN v. LUDWIG, 286 A.D.2d 970 (4""

Dept 2001) (9/28/01)

SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

(1137) CA 01-00183. (Wayne:Co.) -- MARTIN C.

KAPLAN, PLAINTIFF-APPELLANT, V ROBERT P.

LUDWIG AND KUSTOM KARPET KLEANERS, INC..,

D/B/A CUSTOM CARPET CLEANERS,

DEFENDANTS-RESPONDENTS. -- Order and

Judgment unanimously modified on the law and as

modified affirmed with costs to plaintiff in accordance

with the following Memorandum: Plaintiff

commenced this small claims action seeking damages

for defendants’ alleged multiple violations of Federal

and State law governing the activities of telemarketers

and other makers of unsolicited business calls (see,

47 USC § 227; 47 CFR 64.1200; General Business

Law §399-p [3]). Town Court dismissed the claim,

and, upon plaintiff's appeal, County Court modified

the judgment of Town Court by awarding plaintiff $50

in presumed damages for a violation of General

Business Law § 399-p.

We modify the order of County Court and the

judgment of Town Court by awarding plaintiff, as

against both defendants, judgment in the principal

sum of $550, plus interest commencing from March

21, 2000, together with costs and disbursements.

Plaintiff established a violation of both the Federal

statute and regulations and the State statute (see, 47

USC § 227 [b] [1] [B]; [2] [B]; 47 CFR 64.1200 fe} [2]

{i], [iv]; General Business Law § 399-p [3] [a]). (Appeal

from Order of Wayne County Court, Parenti, J. -

Small Claims.) PRESENT: GREEN, J. P.,

HURLBUTT, SCUDDER, KEHOE AND GORSKI, JJ.

(Filed Sept. 28, 2001.)

A-3

Wayne County Court decision (12/4/00)

Index #47429 Entered: 12/4/00

STATE OF NEW YORK

COUNTY COURT COUNTY OF WAYNE

MARTIN C. KAPLAN

Plaintiff / Appellant

-vs- DECISION

ROBERT P. LUDWIG

and KUSTOM KARPET KLEANERS, INC.

D/B/A CUSTOM CARPET CLEANERS

Defendants/ Respondents

MARTIN C. KAPLAN

Plaintiff/ Appellant pro se

ROBERT P. LUDWIG

KUSTOM KARPET KLEANERS, INC.

D/B/A CUSTOM CARPET CLEANERS

Defendants / Respondents pro se

C RPARENTI, J.

This matter is currently before the Court on

appeal from a decision of the Hon. Terence M. Wolfe

from the Small Claims part of the Walworth Town

Court.

The record indicates that a trial was held in the

Walworth Town Court. Plaintiff alleged an action

under various statutes including 47 USC 227, 47 CFR

64.1200 and New York General Business Law §399-p.

Plaintiff claimed damages as a result of a recorded

telephone solicitation. Asa result of said trial, Judge

Wolfe determined that defendant’s calls fell under

§227(c) which requires more than one telephone call

and that, given that there was only a single call

herein, plaintiffs claim failed. The court further

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found that plaintiff's claim failed under §64.1200.

Lastly, the judge found that there was only a single

violation of the General Business Law which would

entitle plaintiff to the greater of actual damages or

$50.00, but that the plaintiff had contributed to

damages by failing to avail himself of a “do not call”

option.

The sole grounds for appeal from a small claims

action is “that substantial justice has not been done

between the parties according to the rules and

principles of substantive law”. See Uniform Justice

Court Act §1807. Only where a judgment rendered in

a small claims action is so shocking as to not be

substantial justice, should such judgment be

overturned. See Coppola v. Kandey Company, 236

AD2d 871 (4t Dept. 1997) See also, Blair v. Five

Points Shopping Plaza Inc., 51 AD2d 167 (3"4 Dept.

1976).

Based upon its review the Court does not find the

decision of the lower court to be so shocking or that

substantial justice was not done. However, the court

below did find a single violation of General Business

Law §399-p. Pursuant to §399-p(9) plaintiff would

have been entitled to recover damages of $50.00.

While it appears as if the lower court held that

plaintiff should not recover any damages because he

failed to mitigate damages, the statute does not

contain such provision. Thus, defendant should have

been directed to pay to plaintiff $50.00 as and for the

violation of §399-p found by the court below.

Therefore, the decision of the Walworth Town Court is

affirmed, except as modified herein to provide for

payment of $50.00 by defendant to plaintiff. This

decision shall constitute the order of the Court.

Dated: November 27, 2000.

s/Carmen R. Parenti

Carmen R. Parenti

Wayne County Judge

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Walworth Town Court, amended final decision

(6/6/00)

Case no: 00020001

WALWORTH TOWN COURT COUNTY OF WAYNE

TOWN OF WALWORTH STATE OF NEW YORK

Martin C. Kaplan, Plaintiff

-Vs-

Robert P. Ludwig, and

Kustom Karpet Kleaners, Inc.

D/b/a Custom Carpet

Cleaners, Defendants

A Small Claims trial on the above captioned case was

held in the Walworth Town Court on March 7 2000,

Judge Terence M. Wolfe presiding.

Plaintiff Martin Kaplan claims damages of $3000

resulting from a recorded telephone solicitation as

follows:

A recording that both Plaintiff and Defendant agree

was the same as text heard by the plaintiff on or

about February 20, 1999 was played for the court.

This recording forms the basis of the claim. The total

time of the recording was 63 seconds.

At the beginning of the recording a voice identifies

itself as “Bob of Custom Carpet Cleaners”. The

message soliciting business for a carpet and

upholstery cleaning company was delivered in a clear

and courteous voice. At one point the voice

apologizes for “using this silly machine”. At the end

of the message the option to “Press 8” to speak with

someone was offered. The plaintiff stated that he did

press 8 and was informed that there were now two

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options; press “9” to hold for a person or press “8” to

be removed from the calling list. The plaintiff pressed

“9” to speak with someone and was informed that -

nobody was available and “please leave your name

and number”. The plaintiff hung up.

The key points are as follows:

1. The phone solicitation was received at about 10:05

AM on 2/20/1999 at Mr. Kaplans residential

phone. No live person spoke from Custom Carpet

Cleaners at any point during this call.

2. There was no address or return phone number

given during this recording.

3. The plaintiff, (Mr. Kaplan), remained on the phone

and did not hang-up, or select the option to be

removed from the calling list.

4. The total time of the initial phone call was just

over 1 minute. Mr. Kaplan stayed on the phone

for an additional period of time before hanging up

the phone. Mr. Kaplan did not leave his name or

phone number, and did not chose to be put on the

“do not call” list.

There is no issue of facts regarding the tape message

since both parties stipulated that this was in fact the

same message sent on 2/20/1999 and the voice was

that of the defendant Robert P. Ludwig.

The plaintiff presented a packet of information to the

Court outlining his case under various statutes

including 47-USC-227, 47-CFR-64.1200, and GBL-

399-p. This packet of information was labeled

“Evidence and Law” and is attached and made a part

hereof. The plaintiff pointed out to the Court that the

Court has jurisdiction over this case based on a

Supreme Court, Appellate Division, Fourth

Department case (Kaplan vs. Democrat and Chronicle

698 NYS 2d 799).

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Mr. Kaplan further claims that he is entitled to treble

damages plus expenses and interest for a total claim

in excess of $9,000.00

The plaintiff claimed that several violations took place

during the 60-second phone call on 2/20/1999.

1. Mr. Ludwig did not properly identify himself at the

beginning of the phone call.

2. The Phone message was prerecorded.

3. The company was not properly identified.

4. There was no phone number or address of the

company given.

5. Mr. Ludwig did not have a written “do not call”

procedure.

On point one, the Court finds that while Mr. Ludwig

identified himself as “Bob” and not “Robert Ludwig”,

there is only one person named “Bob” at Custom

Carpet Cleaners” and this identification was clearly

given as “Bob with Custom Carpet Cleaners’.

Point two, the message was in fact prerecorded. This

is a violation of 47-USC-227(b)(1)(B) and 47-CFR-

64.1200(a)(2).

Point three, Mr. Kaplan made a major point of the

dual spelling of “Custom Carpet Cleaners” or “Kustom

Carpet Kleaners”, in fact BOTH spellings are present

in the Rochester phone book and the Court finds no

intent to hide behind an obscure spelling.

Point four, there was in fact no phone number or

address given and Mr. Kaplan claims that this is a

violation of 47-USC-227(b)(1)(B) and GBL-399-p(3)(a).

Point five, Mr. Ludwig is the sole proprietor of Custom

Carpet Cleaners and personally purchased the

telephone solicitation software. Under cross

examination Mr. Ludwig stated that the procedures

for “do not call” list maintenance were provided with

the software. It is the Courts opinion that this

procedure provided by the manufacturer is sufficient,

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a rT ae

and a separate procedure personally written by

Mr. Ludwig was not required.

A more careful study of 47-USC-227 reveals the -

following:

Under 227(a)(1) the definition of the term “automatic

telephone dialing system” means equipment which

has the capacity-

(A) to store or produce telephone numbers to be ~

called using a random or sequential number

generator, and

(B) to dial such numbers.

This is clearly different from the wording under 47-

USC-227(c)(3). Here the use of a database for storing

telephone numbers of subscribers who object to

receiving telephone solicitations is permitted. If the

overall intent of 227 was to prohibit or prevent

telephone solicitations then there would be no need

for 227(c)(3). Furthermore there is a significant

difference between the Private right of action’ under

227(b)(3) and 227(c)(5).

227(b)(3) allows ‘Private right of action’ for a single

offense, whereas 227(c)(5) clearly states that the

‘Private right of action’ “requires more than one

telephone call within any 12-month period by or on

behalf of the same entity...”

Since the equipment used by Mr. Ludwig utilized a

disk based phone number database and a “Do not

call” database his calls fall under 227(c)(5). If he had

used a random or sequential number generator to

produce the phone numbers then 227(b)(3) would

have applied.

All claims under 47-CFR-64.1200 are also subject to

(and limited by) the same definition as it is set forth in

64.1200(f)(1).

This leaves a single violation of GBL-399-p(3)(a) since

the address and phone number of Custom Carpet

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Cleaners was not included in the message. GBL-399-

p-(9) sets forth the right of action for a person

receiving a phone solicitation and GBL-399-p is not

limited by the definition of an “automatic telephone

dialing system”. This single violation would entitle

Mr. Kaplan to the greater of actual damages or

$50.00. Except for the fact that the Court finds that

Mr. Kaplan has contributed to the “damages” by

failing to avail himself of the “do not call” option.

While the Court sympathizes with Mr. Kaplan in the

understanding that unsolicited phone calls are, at

times, a nuisance, it is not the belief of this Court

that the statute was created to enrich the plaintiff in

response to a single violation on the part of this

defendant. It is further the feeling of this Court that

Mr. Kaplan is well versed in the methods of

preventing further phone solicitations by availing

himself of the “do not call” database. Mr. Kaplan

stated that he has chosen not to avail himself of this

option. Mr. Kaplan has thereby deliberately left

himself open to future telephone solicitations, and

possible profit.

Claim for penalty or compensation was denied.

The forgoing constitutes the decision and order of the

Court.

Dated: June 6, 2000

s/ T. Wolfe

Walworth Town Court

Terence M. Wolfe

Town Justice

See also: “Kaplan vs. Democrat and Chronicle” (698

NYS 2d 799)

“Martin C. Kaplan vs. First City Mortgage et.

al.” (183 Misc 2d 24, 701 NYS 2d 859)

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Walworth Town Court, first final decision

(3/21/00)

STATE OF NEW YORK WALWORTH TOWN COURT

WAYNE COUNTY SMALL CLAIMS PART

Martin C. Kaplan;

Claimant

vs.

Robert P. Ludwig;

dba Custom Carpet

Cleaners FS

Kustom Karpet Kleaners,

Case no: 00020001

Hon. Terence M. Wolfe, Presiding

NOTICE OF

SMALL CLAIMS

JUDGMENT

PLEASE TAKE NOTICE THAT after hearing the proof

and facts between the parties and deliberating

thereon, the Court’s decision is:

The Claim Was DismissedNo monetary award

Dated: March’21, 2000

s/Terence M. Wolfe

Hon. Terence M. Wolfe

Walworth Town Justice

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Statutes and Regulations involved

47 U.S.C. 227

§ 227. Restrictions on the use of telephone equipment

(a) Definitions

As used in this section--

(1) The term "automatic telephone dialing system"

means equipment which has the capacity-- ©

(A) to store or produce telephone numbers to be

called, using a random or sequential number

generator; and

(B) to dial such numbers.

(2) The term "telephone facsimile machine" means

equipment which—has the capacity (A) to transcribe

text or images, or both, from paper into an electronic

signal and to transmit that signal over a regular

telephone line, or (B) to transcribe text or images (or

both) from an electronic signal received over a regular

telephone line onto paper.

(3) The term "telephone solicitation" means the

initiation of a telephone call or message for the

purpose of encouraging the purchase or rental of, or

investment in, property, goods, or services, which is

transmitted to any person, but such term does not

include a call or message (A) to any person with that

person's prior express invitation or permission, (B) to

any person with whom the caller has an established

business relationship, or (C) by a tax exempt

nonprofit organization.

(4) The term "unsolicited advertisement" means any

material advertising the commercial availability or

quality of any property, goods, or services which is

transmitted to any person without that person's prior

express invitation or permission.

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“(b) Restrictions on use of automated telephone

equipment

(1) Prohibitions

It shall be unlawful for any person within the United

States--

(A) to make any call (other than a call made for

emergency purposes or made with the prior express

consent of the called party) using any automatic

telephone dialing pen or an_ artificial or

prerecorded voice--

(i) to any emergency telephone line (including any

"911" line and any emergency line of a hospital,

medical physician or service office, health care

facility, poison control center, or fire protection or

law enforcement agency);

(ii) to the telephone line of any guest room or

patient room of a hospital, health care facility,

elderly home, or similar establishment; or

(iii) to any telephone number assigned to a

paging service, cellular telephone _ service,

specialized mobile radio service, or other radio

common carrier service, or any service for which

the called party is charged for the call;

(B) to initiate any telephone call to any residential

telephone line using an artificial or prerecorded

voice to deliver a message without the prior express

consent of the called party, unless the call is

initiated for emergency purposes or is exempted by

rule or order by the Commission under paragraph

(2)(B);

computer, or other device to send an unsolicited

advertisement to a telephone facsimile machine; or

(D) to use an automatic telephone dialing system

in such a way that two or more telephone lines of a

multi-line business are engaged simultaneously.

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(2) Regulations; exemptions and other provisions

The Commission shall prescribe regulations to

implement the requirements of this subsection. In

implementing the requirements of this subsection, the

Commission--

(A) shall consider prescribing regulations to allow

businesses to avoid receiving calls made using an

artificial or prerecorded voice to which they have not

given their prior express consent;

(B) may, by rule or order, exempt from the

requirements of paragraph (1)(B) of this subsection,

subject to such conditions as the Commission may

prescribe--

(i) calls that are not made for a commercial

purpose; and

(ii) such classes or categories of calls made for

commercial purposes as the Commission

determines--

(I) will not adversely affect the privacy rights

that this section is intended to protect; and

(I) do not include the transmission of any

unsolicited advertisement; and

requirements of paragraph (1)(A)(iii) of this

subsection calls to a telephone number assigned to

a cellular telephone service that are not charged to

the called party, subject to such conditions as the

Commission may prescribe as necessary in the

interest of the privacy rights this section is intended

to protect.

(3) Private right of action

A person or entity may, if otherwise permitted by the

laws or rules of court of a State, bring in an

appropriate court of that State--

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(A) an action based on a violation of this

subsection or the regulations prescribed under this

subsection to enjoin such violation,

(B) an action to recover for actual monetary loss

from such a violation, or to receive $500 in damages

for each such violation, whichever is greater, or

If the court finds that the defendant willfully or

knowingly violated this subsection or the regulations

prescribed under this subsection, the court may, in

its discretion, increase the amount of the award to an

amount equal to not more than 3 times the amount

available under subparagraph (B) of this paragraph.

(1) Rulemaking proceeding required

Within 120 days after December 20, 1991, the

Commission shall initiate a rulemaking proceeding

concerning the need to protect residential telephone

subscribers’ privacy rights to avoid _ receiving

telephone solicitations to which they object. The

proceeding shall--

(A) compare and evaluate alternative methods and

procedures (including the use of electronic

databases, telephone network technologies, special

directory markings, industry-based or company-

specific "do not call" systems, and any other

alternatives, individually or in combination) for their

effectiveness in protecting such privacy rights, and

in terms of their cost and other advantages and

disadvantages;

(B) evaluate the categories of public and private

entities that would have the capacity to establish

and administer such methods and procedures;

procedures may apply for local telephone

A-15

solicitations, such as local telephone solicitations of

small businesses or holders of second class mail

permits;

(D) consider whether there is a need for additional

Commission authority to further restrict telephone

solicitations, including those calls exempted under

subsection (a)(3) of this section, and, if such a

finding is made and supported by the record,

propose specific restrictions to the Congress; and

(E) develop proposed regulations to implement the

methods and procedures that the Commission

determines are most effective and efficient to

accomplish the purposes of this section.

(2) Regulations

Not later than 9 months after December 20, 1991,

the Commission shall conclude the rulemaking

proceeding initiated under paragraph (1) and shall

prescribe regulations to implement methods and

procedures for protecting the privacy rights described

in such paragraph in an efficient, effective, and

economic manner and without the imposition of any

additional charge to telephone subscribers.

(3) Use of database permitted

The regulations required by paragraph (2) may

require the establishment and operation of a single

national database to compile a list of telephone

numbers of residential subscribers who object to

receiving telephone solicitations, and to make that

compiled list and parts thereof available for purchase.

If the Commission determines to require such a

database, such regulations shall--

(A) specify a method by which the Commission will

select an entity to administer such database;

(B) require each common carrier providing

telephone exchange service, in accordance with

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regulations prescribed by the Commission, to inform

subscribers for telephone exchange service of the

opportunity to provide notification, in accordance

with regulations established under this paragraph,

that such subscriber objects to receiving telephone

solicitations;

subscriber shall be informed, by the common carrier

that provides local exchange service to that

subscriber, of (i) the subscriber's right to give or

revoke a_ notification of an objection under

subparagraph (A), and (ii) the methods by which

such right may be exercised by the subscriber;

(D) specify the methods by which such objections

shall be collected and added to the database;

(E) prohibit any residential subscriber from being

charged for giving or revoking such notification or

for being included in a database compiled under

this section;

(F) prohibit any person from making or

transmitting a telephone solicitation to the

telephone number of any subscriber included in

such database;

(G) specify (i) the methods by which any person

desiring to make or transmit telephone solicitations

will obtain access to the database, by area code or

local exchange prefix, as required to avoid calling

the telephone numbers of subscribers included in

such database; and (ii) the costs to be recovered

from such persons;

(H) specify the methods for recovering, from

persons accessing such database, the costs involved

in identifying, collecting, updating, disseminating,

and selling, and other activities relating to, the

operations of the database that are incurred by the

entities carrying out those activities;

(I) specify the frequency with which such database

will be updated and specify the method by which

such updating will take effect for purposes of

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compliance with the regulations prescribed under

this subsection;

(J) be designed to enable States to use the

database mechanism selected by the Commission

for purposes of administering or enforcing State law;

(K) prohibit the use of such database for any

purpose other than compliance with the

requirements of this section and any such State law

and specify methods for protection of the privacy

rights of persons whose numbers are included in

such database; and

(L) require each common carrier providing services

to any person for the purpose of making telephone

solicitations to notify such person of the

requirements of this section and the regulations

thereunder.

(4) Considerations required for use of database

method

If the Commission determines to require the

database mechanism described in paragraph (3), the

Commission shall--

(A) in developing procedures for gaining access to

the database, consider the different needs of

telemarketers conducting business on a national,

regional, State, or local level;

(B) develop a fee schedule or price structure for

recouping the cost of such database that recognizes

such differences and--

(i) reflect the relative costs of providing a

national, regional, State, or local list of phone

numbers of subscribers who object to receiving

telephone solicitations;

(ii) reflect the relative costs of providing such lists

on paper or electronic media; and

(iii) not place an unreasonable financial burden

on small businesses; and

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operating on a local basis could be met through

special markings of area white pages directories,

and (ii) if such directories are needed as an adjunct

to database lists prepared by area code and local

exchange prefix.

(S) Private right of action -

A person who has received more than one telephone

call within any 12-month period by or on behalf of the

same entity in violation of the regulations prescribed

under this subsection may, if otherwise permitted by

the laws or rules of court of a State bring in an

appropriate court of that State--

(A) an action based on a violation of the

regulations prescribed under this subsection to

enjoin such violation,

(B) an action to recover for actual monetary loss

from such a violation, or to receive up to $500 in

damages for each such violation, whichever is

greater, or

It shall be an affirmative defense in any action

brought under this paragraph that the defendant has

established and implemented, with due care,

reasonable practices and procedures to effectively

prevent telephone solicitations in violation of the

regulations prescribed under this subsection. If the

court finds that the defendant willfully or knowingly

violated the regulations prescribed under this

subsection, the court may, in its discretion, increase

the amount of the award to an amount equal to not

more than 3 times the amount available under

subparagraph (B) of this paragraph.

(6) Relation to subsection (b)

The provisions of this subsection shali not be

construed to permit a communication prohibited by

subsection (b) of this section.

(d) Technical and procedural standards

(1) Prohibition

It shall be unlawful for any person within the United

States--

(A) to initiate any communication using a

telephone facsimile machine, or to make any

telephone call using any automatic telephone dialing

system, that does not comply with the technical and

procedural standards prescribed under this

subsection, or to use any telephone facsimile

machine or automatic telephone dialing system in a

manner that does not comply with such standards;

(B) to use a computer or other electronic device to

send any message via a telephone facsimile machine

unless such person clearly marks, in a margin at

the top or bottom of each transmitted page of the

message or on the first page of the transmission, the

date and time it is sent and an identification of the

business, other entity, or individual sending the

message and the telephone number of the sending

machine or of such business, other entity, or

individual.

(2) Telephone facsimile machines

The Commission shall revise the regulations setting

technical and procedural standards for telephone

facsimile machines to require that any such machine

which is manufactured after one year after December

20, 1991, clearly marks, in a margin at the top or

bottom of each transmitted page or on the first page

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of each transmission, the date and time sent, an

identification of the business, other entity, or

individual sending the message, and the telephone

number of the sending machine or of such business,

other entity, or individual.

{3) Artificial or prerecorded voice systems

The Commission shall prescribe technical and

procedural standards for systems that are used to

transmit any artificial or prerecorded voice message

via telephone. Such standards shall require that--

(A) all artificial or prerecorded telephone messages

(i) shall, at the beginning of the message, state

clearly the identity of the business, individual, or

other entity initiating the call, and (u) shall, during

or after the message, state clearly the telephone

number or address of such business, other entity, or

individual; and |

(B) any such system will automatically release the

called party's line within 5 seconds of the time

notification is transmitted to the system that the

called party has hung up, to allow the called party's

line to be used to make or receive other calls.

(e) Effect on State law

(1) State law not preempted

Except for the standards prescribed under

subsection (d) of this section and subject to

paragraph (2) of this subsection, nothing in this

section or in the regulations prescribed under this

section shall preempt any State law that imposes

more restrictive intrastate requirements or

regulations on, or which prohibits--

(A) the use of telephone facsimile machines or

other electronic devices to send _ unsolicited

advertisements;

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(B) the use of automatic telephone dialing systems;

messages; or

(D) the making of telephone solicitations.

(2) State use of databases

If, pursuant to subsection (c)(3) of this section, the

Commission requires the establishment of a single

national database of telephone numbers of

subscribers who object to receiving telephone

solicitations, a State or local authority may not, in its

regulation of telephone solicitations, require the use

of any database, list, or listing system that does not

include the part of such single national database that

relates to such State.

(f) Actions by States

(1) Authority of States

Whenever the attorney general of a State, or an

official or agency designated by a State, has reason to

believe that any person has engaged or is engaging in

a pattern or practice of telephone calls or other

transmissions to residents of that State in violation of

this section or the regulations prescribed under this

section, the State may bring a civil action on behalf of

its residents to enjoin such calls, an action to recover

for actual monetary loss or receive $500 in damages

for each violation, or both such actions. If the court

finds the defendant willfully or knowingly violated

such regulations, the court may, in its discretion,

increase the amount of the award to an amount equal

to not more than 3 times the amount available under

the preceding sentence.

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(2) Exclusive jurisdiction of Federal courts

The district courts of the United States, the United

States courts of any territory, and the District Court

of the United States for the District of Columbia shall

have exclusive jurisdiction over all civil actions

brought under this _ subsection. Upon proper

application, such courts shall also have jurisdiction to

issue writs of mandamus, or orders affording like

relief, commanding the defendant to comply with the

provisions of this section or regulations prescribed

under this section, including the requirement that the

defendant take such action as is necessary to remove

the danger of such violation. Upon a proper showing,

a permanent or temporary injunction or restraining

order shall be granted without bond.

(3) Rights of Commission ”"

The State shall serve prior written notice of any

such civil action upon the Commission and provide

the Commission with a copy of its complaint, except

in any case where such prior notice is not feasible, in

which case the State shall serve such notice

immediately upon instituting such action. The

Commission shall have the right (A) to intervene in

the action, (B) upon so intervening, to be heard on all

matters arising therein, and (C) to file petitions for

appeal.

(4) Venue; service of process

Any civil action brought under this subsection in a

district court of the United States may be brought in

the district wherein the defendant is found or is an

inhabitant or transacts business or wherein the

violation occurred or is occurring, and process in

such cases may be served in any district in which the

A-23

defendant is an inhabitant or where the defendant

may be found.

(5S) Investigatory powers

For purposes of bringing any civil action under this

subsection, nothing in this section shall prevent the

attorney general of a State, or an official or agency

designated by a State, from exercising the powers

conferred on the attorney general or such official by

the laws of such State to conduct investigations or to

administer oaths or affirmations or to compel the

attendance of witnesses or the production. of

documentary and other evidence.

(6) Effect on State court proceedings

Nothing contained in this subsection shall be

construed to prohibit an authorized State official from

proceeding in State court on the basis of an alleged

violation of any general civil or criminal statute of

such State.

(7) Limitation

Whenever the Commission has instituted a civil

action for violation of regulations prescribed under

this section, no State may, during the pendency of

such action instituted by the Commission,

subsequently institute a civil action against any

defendant named in the Commission's complaint for

any violation as alleged in the Commission's

complaint.

(8) Definition

As used in this subsection, the term "attorney

general" means the chief legal officer of a State.

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47 CFR 64.1200

SUBPART L--RESTRICTIONS ON

TELEPHONE SOLICITATION

§ 64.1200 Delivery restrictions.

(a) No person may:

(1) Initiate any telephone call (other than a call

made for emergency purposes or made with the prior

express consent of the called party) using an

automatic telephone dialing system or an artificial or

prerecorded voice,

(i) To any emergency telephone line, including any

911 line and any emergency line of a hospital,

medical physician or service office, health care

facility, poison control center, or fire protection or law

enforcement agency;

(ii) To the telephone line of any guest room or

patient room of a hospital, health care facility, elderly

home, or similar establishment; or

(iii) To any telephone number assigned to a paging

service, cellular telephone service, specialized mobile

radio service, or other radio common carrier service,

or any service for which thé called party is charged for

the call;

(2) Initiate any telephone call to any residential

telephone line using an artificial or prerecorded voice

to deliver a message without the prior express

consent of the called party, unless the call is initiated

for emergency purposes or is exempted by §

64.1200(c) of this section.

(3) Use a telephone facsimile machine, computer, or

other device to send an unsolicited advertisement to a

telephone facsimile machine.

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(4) Use an automatic telephone dialing system m

such a way that two or more telephone lines of a

multi-line business are engaged simultaneously.

(b) For the purpose of § 64.1200(a) of this section,

the term "emergency purposes" means calls made .

necessary in any situation affecting the health and

safety of consumers.

this section shall not include a call or message by, or

on behalf of, a caller:

(1) That is not made for a commercial purpose,

(2) That is made for a commercial purpose but does

not include the transmission of any unsolicited

advertisement, ce

(3) To any person with whom the caller has an

established business relationship at the time the call

is made, or

(4) Which is a tax-exempt nonprofit organization.

(d) All artificial or prerecorded telephone messages

delivered by an automatic telephone dialing system

shall:

(1) At the beginning of the message, state clearly the

identity of the business, individual, or other entity

initiating the call, and

(2) During or after the message, state clearly the

telephone number (other than that of the autodialer

or prerecorded message player which placed the call)

or address of such business, other entity, or

individual.

(e) No person Or entity shall initiate any telephone

solicitation to a residential telephone subscriber:

(1) Before the hour of 8 a.m. or after 9 p.m. (local

time at the called party's location), and

(2) Unless such person or entity has instituted

procedures for maintaining a list of persons who do

not wish to receive telephone solicitations made by or

on behalf of that person or entity. The procedures

instituted must meet the following minimum

standards:

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(i) Written policy. Persons or entities making

telephone solicitations must have a written policy,

available upon demand, for maintaining a do-not-call

list.

(ii) Training of personnel engaged in telephone

solicitation. Personnel engaged in any aspect of

telephone solicitation must be informed and trained

in the existence and use of the do-not-call list.

(ili) Recording, disclosure of do-not-call requests. If

a person or entity making a telephone solicitation (or

on whose behalf a solicitation is made) receives a

request from a residential telephone subscriber not to

receive calls from that person or entity, the person or

entity must record the request and place the

subscriber's name and telephone number on the do-

not-call list at the time the request is made. If such

requests are recorded or maintained by a party other

than the person or entity on whose behalf the

solicitation is made, the person or entity on whose

behalf the solicitation is made will be liable for any

failures to honor the do-not-call request. In order to

protect the consumer's privacy, persons or entities

must obtain a consumer's prior express consent to

share or forward the consumer's request not to be

called to a party other than the person or entity on

whose behalf a solicitation is made or an affiliated

entity.

(iv) Identification of telephone solicitor. A person or

entity making a telephone solicitation must provide

the called party with the name of the individual caller,

the name of the person or entity on whose behalf the

call is being made, and a telephone number or

address at which the person or entity may be

contacted. If a person or entity makes a solicitation

using an artificial or prerecorded voice message

transmitted by an autodialer, the person or entity

must provide a telephone number other than that of

the autodialer or prerecorded message player which

placed the call. The telephone number provided may

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not be a 900 number or any other number for which

charges exceed local or long distance transmission

charges.

(v) Affiliated persons or entities. In the absence of a

specific request by the subscriber to the contrary, a

residential subscriber's do-not-call request shall apply

to the particular business entity making the call (or

on whose behalf a call is made), and will not apply to

affiliated entities unless the consumer reasonably

would expect them to be included given the

identification of the caller and the product being

advertised.

(vi) Maintenance of do-not-call lists. A person or

entity making telephone solicitations must maintain a

record of a caller's request not to receive future

telephone solicitations. A do not call request must be

honored for 10 years from the time the request is

made.

(f) As used in this section:

(1) The terms "automatic telephone dialing system"

and "autodialer" mean equipment which has the

capacity to store or produce telephone numbers to be

called using a random or sequential number

generator and to dial such numbers.

(2) The term "telephone facsimile machine" means

equipment which has the capacity to transcribe text

or images, or both, from paper into an electronic

signal and to transmit that signal ever a regular

telephone line, or to transcribe text or images (or

both) from an electronic signal received over a regular

telephone line onto paper.

(3) The term "telephone solicitation" means the

initiation of a telephone call or message for the

purpose of encouraging the purchase or rental of, or

investment in, property, goods, or services, which is

transmitted to any person, but such term does not

include a call or message:

(i) To any person with that person's prior express

invitation or permission;

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(u) To any person with whom the caller has an

established business relationship; or

(ii) By or on behalf of a tax-exempt nonprofit

organization.

(4) The term "established business relationship"

means a prior or existing relationship formed by a

voluntary two-way communication between a person

or entity and a residential subscriber with or without

an exchange of consideration, on the basis of an

inquiry, application, purchase or transaction by the

residential subscriber regarding products or services

offered by such person or entity, which relationship

has not been previously terminated by either party.

(S) The term "unsolicited advertisement" means any

material advertising the commercial availability or

quality of any property, goods, or services which is

transmitted to any person without that person's prior

express invitation or permission.

[57 FR 53293, Nov. 9, 1992; 60 FR 42069, Aug. 15,

1995]

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New York General Business Law §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;

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

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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 shail 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

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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. (Eff. until June 1, 2001. See, also, subd. 6

below.} A telephone solicitor shall not make a

consumer telephone call to a consumer unless the

telephone solicitor identifies the business on whose

behalf the telephone Solicitor is calling and the

purpose of the call immediately after making contact

with the consumer to whom the call is made.

Nothing contained herein shall be deemed to limit,

annul, alter, or affect the provisions of subdivision

three of this section.

6. (Eff. June 1, 2001. See, also, subd. 6 above.] A

telephone solicitor shall not make a consumer

telephone call to a consumer unless the telephone

solicitor conforms with subparagraph one of

paragraph b of subdivision six of section three

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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,

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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.

(Added L.1988, c. 231, § 1; amended L.1992, c.

581, § 2.)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.