senate Bill S1219

2013-2014 Legislative Session

Provides for notification to utility customers of their right to direct access to public service commission complaint procedures without arbitration or court proceedings

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to energy and telecommunications
Jan 09, 2013 referred to energy and telecommunications

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S1219 - Bill Details

See Assembly Version of this Bill:
A1120
Current Committee:
Law Section:
Public Service Law
Laws Affected:
Amd §43, Pub Serv L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1399, A736
2009-2010: S5252, A7867

S1219 - Bill Texts

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Provides for notification to utility customers of their right to direct access to public service commission complaint procedures without arbitration or court proceedings.

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BILL NUMBER:S1219

TITLE OF BILL: An act to amend the public service law, in relation to
notification to utility customers of their right to direct access to
public service commission complaint procedures without arbitration or
court proceedings

PURPOSE OR GENERAL IDEA OF BILL:
To ensure that residential utility customers, including submetered
customers, are provided annual notice of their right to access the
public Service Commission's complaint process.

SUMMARY OF SPECIFIC PROVISIONS:
-Amends subdivision 1 of section 43 of the public service law, as
added by chapter 713 of the laws of 19B1 to require the Public Service
Commission to maintain regulations requiring municipalities and
utilities annually notify all residential utility customers, including
submetered customers, that the complaint handling procedures of the
Commission can be invoked for an administrative determination of their
complaint by telephone call, letter, online complaint form, or a visit
to the office of the commission;

-Act taking effect on the ninetieth day after it becomes law.

JUSTIFICATION:
The Public Service commission has long had primary jurisdiction over
customer disputes regarding utility service, which are decided
administratively subject to judicial review of final decisions under
CPLR Article 7B. For residential customers the requirements for prompt
and simple utility and administrative agency complaint determination
procedures are now contained in the Home Energy Fair Practices Act
(HEFPA), Public Service Law (PSL) 30, et seg. PSL Section 43.1
requires all utilities, upon receiving a customer complaint, to have
procedures for a "prompt investigation of any complaint," and for
"prompt reporting to the complainant of the result of such
investigation." After any report of the utility adverse to the
customer, the utility is required to "inform any complainant... of the
availability of the commission's complaint handling procedures."

The bill is necessary to correct current complaint handling practices
of some providers of utility service and the public Service Commission
(PSC) which have had the effect of diverting complaints regarding
electric service to outside third parties for arbitration or
adjudication or deterring customers from lodging complaints. This
impedes the provision of service in accordance with HEFPA and thwarts
the prompt and efficient resolution of electricity customer
complaints.

Before 2002, despite a longstanding regulation requiring landlords
providing submetered electric service to implement complaint
procedures "consistent with HEFPA," 16 NYCRR Part 96.2, some PSC
orders approving landlords' petitions for submetering approval mention
complaint procedures which involve third party determinations, such as
arbitration or court proceedings. despite the applicability of the PSC
complaint handling procedures.


Some examples follow:

Binding arbitration by the American Arbitration Association: 2000
Hazel Towers Submetering Order ("Upon receipt of the protest, the
matter shall be turned over to a grievance arbitrator. The arbitrator,
to be selected from the American Arbitration Association or
equivalent. . ."); 1998 Ruppert/Yorkville Towers Submetering Order
("The arbitrator, to be selected from the American Arbitration
Association or equivalent, is to take action within a reasonable
period of time....and the decision of the arbitrator will be binding
to all parties");

Non-binding arbitration: 2001 Ebbetts Field Apartments Submetering
Order ("the submetering plan does not provide for binding arbitration,
only arbitration");

Arbitration followed by PSC complaint process: 2008 1 Alexander
Street, Yonkers Submetering Order ("The property manager will submit
the grievance to an independent arbitrator selected from the American
Arbitration Association or equivalent, at no cost to the tenant. The
decision of the arbitrator w ill be provided to the tenant promptly
with notice of the arbitration procedures. If the tenant is
dissatisfied with the decision of the arbitrator, either party may
file a complaint with the Commission pursuant to the Home Energy Fair
Practices Act (HEFPA)). New York City Landlord-tenant court
proceedings: 2008 City of New York, Roosevelt Landings (Eastwood)
Submetering Order, ("If a resident remains dissatisfied, the resident,
within fifteen' (IS) days of management's response, may request in
writing that the grievance be submitted to the New York City Civil
Court Housing, Landlord/Tenant Court");

The New York City Department of Housing Development and Preservation:
1997 North Waterside Plaza Submetering Order ("If the complainant is
dissatisfied with the managing agent's response, he or she may request
a review of said determination by filing a written protest within
fourteen days from the date of the response to HPD").

These alternative venues for complaint adjudication all involve time
consuming and comparatively formal proceedings. They may also prove to
be expensive and risky, for example, if an eviction case is the forum
for resolution. These factors may serve to deter customers with
meritorious complaints from making them, and reduce awareness at the
Public Service Commission of the nature and quality of customer
service actually provided by certain utilities.

Such alternative complaint procedures are inconsistent with the
Commission's primary jurisdiction over electric service and with the
express HEFPA requirements in PSL section 43 of a "prompt
investigation" and "prompt reporting of the result of such
investigation," with information provided to the customer "of the
availability of the commission's complaint handling procedures."

In 2002, the legislature adopted the Energy Consumer Protection Act,
and a new PSL Section 53 clearly eliminated any power of the PSC to
allow anything less than "full compliance" with HEFPA or to waive any
provision of HEFPA for submeterers:


§ 53. Application. For purposes of this article, a reference to a gas
corporation, an electric corporation, a utility company, or a utility
corporation shall include, but is not limited to, any entity that, in
any manner, sells or facilitates the sale or furnishing of gas or
electricity to residential customers. No provision of this article or
of this chapter authorizes or permits the provision of gas or
electricity service by any such corporation or other entity in any
manner other than in JO compliance with the provisions of this article
or to authorize the commission to waive compliance with any
requirement of this article for any such corporation or other entity.

After enactment of ECPA, the PSC amended its customer complaint
handling regulations to reflect that term "utilities" includes "owners
of submetered residential buildings." 16 NYCRR § 12.0. The Commission
rule was upheld in a court challenge, Waterside Plaza, LLC v. NYPSC
(Albany County Index No. 7654/05), Opinion dated July 3, 2006 ("Those
who submeter electricity for sale to residential end-users are
utilities within the meaning of Article 2 of the PSL. Accordingly,
those entities must provide all HEFPA protections."). One of the
HEFPA protections is notification of customers regarding their
opportunity to have a complaint about utility service resolved by the
Public Service Commission. PSL § 43

Subsequently, however, the PSC issued many submetering orders which
contain confusing references to third party arbitration or court
procedures for resolution of complaints regarding utility service.
There is no basis in existing law for referral of the customer's
dispute to court or arbitration. Such procedures for referral of
complaints to third parties deviate from the statutory procedures
established in PSL § 43. As a result of the practices of the PSC and
submeterers, many submetered residential customers are confused or
misinformed regarding the statutory complaint procedures which
actually apply to disputes regarding their electric service.

PRIOR LEGISLATIVE HISTORY:

2011-12: Referred to Energy and Telecommunications (S.1399)
2009-10: Referred to Energy and Telecommunications (S.5252)

FISCAL IMPLICATIONS:
To be determined.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1219

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. PERKINS -- read twice and ordered printed, and when
  printed to be committed to the Committee on  Energy  and  Telecommuni-
  cations

AN  ACT  to amend the public service law, in relation to notification to
  utility customers of their right to direct access  to  public  service
  commission   complaint   procedures   without   arbitration  or  court
  proceedings

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Legislative  findings  and intent. The legislature hereby
finds that some providers of residential utility  service  have  created
barriers  to  prompt  resolution  of  customer  complaints  through  the
complaint adjudication functions of the public service commission.  Some
providers  of electric service refer customers to private arbitration or
judicial adjudication of utility customer complaints,  contrary  to  the
primary jurisdiction of the public service commission, creating barriers
to  the efficient and uniform enforcement and administration of the Home
Energy Fair Practices Act. The legislature further finds that it  is  in
the  public  interest to require the public service commission to notify
all residential utility customers of  their  right  to  file  complaints
directly  with the public service commission for administrative determi-
nation without pursuing third party arbitration or judicial relief.
  S 2. Subdivision 1 of section 43 of the public service law,  as  added
by chapter 713 of the laws of 1981, is amended to read as follows:
  1. The commission shall maintain regulations for the handling of resi-
dential  customer complaints, which at a minimum shall require that each
utility or municipality: (a) maintain  procedures  for  prompt  investi-
gation  of  any complaint on a bill for gas or electric service rendered
or a deposit required and for prompt reporting to the complainant of the
result of such investigation.  If such report is made orally, the utili-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01807-01-3

S. 1219                             2

ty corporation or municipality shall offer the complainant upon a  writ-
ten request the opportunity to receive the report in writing; (b) inform
any  complainant  whose  complaint  is  resolved in favor of the utility
corporation or municipality, in whole or in part, of the availability of
the  commission's complaint handling procedures; (c) refrain from termi-
nating service for nonpayment so long as a complaint is pending before a
utility, municipality or the commission and for fifteen days thereafter,
or for such period as the commission for  good  cause  shall  establish;
provided  however,  that  as a condition of continued service during the
pendency of any such  dispute,  a  customer  shall  pay  the  undisputed
portions  of  any bill for service including bills for current usage, or
such amounts as the commission determines reasonably reflect the cost of
usage to such customer; [and] (d) refrain  from  treating  the  disputed
portion  of any bill as late during the pendency of any complaint before
the utility or municipality; AND (E) NOTIFY  ALL  RESIDENTIAL  CUSTOMERS
ANNUALLY,  INCLUDING  SUBMETERED  CUSTOMERS, THAT THE COMPLAINT HANDLING
PROCEDURES OF THE PUBLIC SERVICE COMMISSION CAN BE INVOKED TO OBTAIN  AN
ADMINISTRATIVE  DETERMINATION OF COMPLAINTS REGARDING UTILITY SERVICE BY
TELEPHONE CALL, LETTER, ONLINE COMPLAINT FORM, OR VISIT TO AN OFFICE  OF
THE PUBLIC SERVICE COMMISSION.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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