S T A T E O F N E W Y O R K
________________________________________________________________________
9768--A
I N A S S E M B L Y
April 6, 2016
___________
Introduced by M. of A. BRENNAN, SIMOTAS, MOSLEY, RODRIGUEZ, SIMON, BRON-
SON, ABINANTI, LIFTON, MAYER, KEARNS, HOOPER, ORTIZ, GOTTFRIED,
JAFFEE, OTIS, TITONE, CAHILL, THIELE, GALEF, KAVANAGH -- Multi-Spon-
sored by -- M. of A. ABBATE, BLAKE, COOK, ENGLEBRIGHT, GIGLIO, GLICK,
HEVESI, HIKIND, LENTOL, MARKEY, McDONOUGH, MONTESANO, PICHARDO, RAIA
-- read once and referred to the Committee on Corporations, Authori-
ties and Commissions -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
AN ACT to amend the public service law and the state administrative
procedure act, in relation to the membership of the public service
commission and in relation to clarifying the mandatory time frames
within which the public service commission must act upon petitions
submitted by regulated entities and the citizenry
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 4 of the public service law, as amended by chapter
155 of the laws of 1970, is amended to read as follows:
S 4. The public service commission. (A) 1. There shall be in the
department of public service a public service commission, which shall
possess the powers and duties hereinafter specified, and also all powers
necessary or proper to enable it to carry out the purposes of this chap-
ter. The commission shall consist of [five] ELEVEN members, NINE VOTING
AND TWO NON-VOTING, AS FOLLOWS: SEVEN VOTING MEMBERS to be appointed by
the governor, by and with the advice and consent of the senate, ONE UPON
THE RECOMMENDATION OF THE ATTORNEY GENERAL AND ONE UPON THE RECOMMENDA-
TION OF THE STATE COMPTROLLER; ONE VOTING MEMBER APPOINTED BY THE SPEAK-
ER OF THE ASSEMBLY; ONE VOTING MEMBER APPOINTED BY THE TEMPORARY PRESI-
DENT OF THE SENATE; AND ONE NON-VOTING MEMBER APPOINTED BY THE MINORITY
LEADER OF THE ASSEMBLY AND ONE NON-VOTING MEMBER APPOINTED BY THE MINOR-
ITY LEADER OF THE SENATE. [A commissioner shall be designated as chair-
man of the commission by the governor to serve in such capacity at the
pleasure of the governor or until his term as commissioner expires
whichever first occurs. No more than three commissioners may be members
of the same political party unless, pursuant to action taken under
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14610-05-6
A. 9768--A 2
subdivision two, the number of commissioners shall exceed five, and in
such event no more than four commissioners may be members of the same
political party.] THE GOVERNOR SHALL APPOINT A CHAIRPERSON FROM AMONG
THE VOTING MEMBERS OF THE COMMISSION.
(B) TO THE MAXIMUM EXTENT POSSIBLE, THE COMMISSIONERS SHALL POSSESS
BROAD AND EXTENSIVE KNOWLEDGE AND EXPERIENCE IN THE AREAS OF ENERGY AND
TELECOMMUNICATIONS ISSUES, FINANCING AND REGULATION OF UTILITIES, RATE-
MAKING, OR CONSUMER PROTECTION AND ADVOCACY. AT LEAST ONE OF THE GOVER-
NOR'S APPOINTMENTS SHALL BE AN INDIVIDUAL WHO HAS DEMONSTRATED IN HIS OR
HER CAREER A COMMITMENT AND COMPETENCE IN CONSUMER ADVOCACY OR IN
FURTHERING THE PUBLIC INTEREST IN ONE OR MORE AREAS RELEVANT TO UTILITY
REGULATION.
2. [Notwithstanding subdivision one, whenever the commission shall
certify to the governor that additional commissioners are needed for the
proper disposition of the business before it, the governor may increase
the membership of the commission to seven members by appointing two
additional commissioners by and with the advice and consent of the
senate. The terms of office of such additional commissioners and the
filling of vacancies during such terms shall be governed by subdivision
three, except that upon the expiration of the terms of such additional
commissioners, no further appointments or reappointments shall be made
to such additional offices, unless the commission shall first certify to
the governor that the need for additional commissioners continues to
exist.
3.] The term of office of a commissioner shall be six years from the
first day of February of the calendar year in which he shall be
appointed and commissioners shall serve on a full-time basis. Upon a
vacancy occurring otherwise than by expiration of term in the office of
any commissioner, [the governor, by and with the advice and consent of
the senate,] THE APPROPRIATE APPOINTING AUTHORITY DESCRIBED IN SUBDIVI-
SION ONE OF THIS SECTION shall fill the vacancy by appointment for the
unexpired term, PROVIDED THAT ANY APPOINTMENT MADE BY THE GOVERNOR TO
FILL A VACANCY PURSUANT TO THIS SUBDIVISION SHALL BE BY AND WITH THE
ADVICE AND CONSENT OF THE SENATE.
S 2. Section 20 of the public service law is amended by adding a new
subdivision 3 to read as follows:
3. NOTWITHSTANDING ANY PROVISIONS OF LAW TO THE CONTRARY, THE COMMIS-
SION SHALL ADOPT RULES TO PROHIBIT OR LIMIT THE USE OF EX PARTE COMMUNI-
CATIONS IN ANY PROCEEDING BEFORE THE COMMISSION. SUCH RULES SHALL
INCLUDE, BUT NOT BE LIMITED TO:
(A) WHETHER EX PARTE COMMUNICATIONS SHOULD BE ABSOLUTELY BARRED,
LIMITED OR REQUIRE NOTICE TO ALL PARTIES AND AN OPPORTUNITY TO RESPOND;
(B) THE TIMING OF, OR SPECIFIC TRIGGERING EVENT FOR, THE IMPOSITION OF
A BAN OR LIMITATION ON EX PARTE COMMUNICATIONS; AND
(C) SANCTIONS FOR VIOLATING SUCH RULES.
S 3. The public service law is amended by adding a new section 28 to
read as follows:
S 28. PETITIONS; TIME PERIOD FOR ACTION TO BE TAKEN. 1. FOR THE
PURPOSES OF THIS SECTION, THE TERM:
(A) "CUSTOMER" SHALL MEAN A CUSTOMER OR CONSUMER OF A UTILITY SERVICE
THAT IS REGULATED PURSUANT TO THIS CHAPTER, WHO SHALL BE EITHER AN INDI-
VIDUAL; A GROUP OF INDIVIDUALS; THE MAYOR OF A CITY; THE TRUSTEES OF A
VILLAGE; THE TOWN BOARD OF A TOWN; OR THE CHIEF EXECUTIVE OFFICE OR THE
LEGISLATIVE BODY OF A COUNTY. FOR THE PURPOSES OF THIS SUBDIVISION,
"CUSTOMER" SHALL INCLUDE THE DIVISION OF CONSUMER PROTECTION OF THE
DEPARTMENT OF STATE.
A. 9768--A 3
(B) "PETITION" SHALL MEAN ANY PETITION OR COMPLAINT FILED WITH OR
SUBMITTED TO THE COMMISSION PURSUANT TO THIS CHAPTER BY A CUSTOMER,
ALLEGING OR RELATING TO:
(I) THE FAILURE OR OMITTING TO DO ANYTHING REQUIRED OF A PUBLIC UTILI-
TY COMPANY BY ANY PROVISION OF THIS CHAPTER, OR BY ANY REGULATIONS OR AN
ORDER OF THE COMMISSION;
(II) ANY ACTIONS TAKEN BY A PUBLIC UTILITY COMPANY, ITS OFFICERS,
EMPLOYEES OR AGENTS THAT ARE CONTRARY TO OR IN VIOLATION OF THE
PROVISIONS OF THIS CHAPTER; THE REGULATIONS OR AN ORDER OF THE COMMIS-
SION; OR THE TERMS OR CONDITIONS OF THE FRANCHISE OR CHARTER OF THE
PUBLIC UTILITY COMPANY;
(III) RATE CHARGES OR CLASSIFICATION OF SERVICE; OR
(IV) THE ADEQUACY, EFFICIENCY OR RELIABILITY OF SERVICE.
SUCH TERM SHALL NOT MEAN OR INCLUDE ANY PETITION FILED OR SUBMITTED BY
A PUBLIC UTILITY CORPORATION OR ANY CORPORATION THAT PROVIDES OR
SUPPLIES UTILITY SERVICES PURSUANT TO THIS CHAPTER.
2. (A) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, AND
EXCEPT WHERE A SHORTER TIME PERIOD IS REQUIRED PURSUANT TO THIS CHAPTER,
THE COMMISSION SHALL COMPLETE ITS INVESTIGATION AND ISSUE A DETERMI-
NATION OR DECISION WITH RESPECT TO ANY PETITION WITHIN NINETY DAYS OF
THE FILING OR SUBMISSION OF THE PETITION.
(B) NOTWITHSTANDING ANY PROVISION OF PARAGRAPH (A) OF THIS SUBDIVI-
SION, IF THE PETITION ALLEGES AN EMERGENCY OR SOME OTHER ACTION THAT
THREATENS OR IMPACTS THE HEALTH OR SAFETY OF ANY PERSON OR THE SURROUND-
ING AREA, THE COMMISSION SHALL MAKE A DETERMINATION AS SOON AS POSSIBLE
BUT IN NO EVENT MORE THAN THIRTY DAYS FROM THE DATE WHEN SUCH PETITION
WAS FILED OR SUBMITTED.
(C) IF THE COMMISSION IS UNABLE TO MEET THE TIME LIMITATIONS SET FORTH
IN THIS SUBDIVISION, THE COMMISSION SHALL PREPARE AND SEND TO THE PETI-
TIONER OR COMPLAINANT A WRITTEN DOCUMENT STATING THE REASONS FOR THE
FAILURE OR INABILITY OF THE COMMISSION TO COMPLY WITH THE TIME FRAMES,
AND THE DATE WHEN A DETERMINATION WILL BE MADE, WHICH DATE SHALL OCCUR
NOT LATER THAN SIXTY DAYS FROM THE DATE OF THE WRITTEN DOCUMENT, EXCEPT
THAT THE PROVISIONS OF THIS PARAGRAPH SHALL NOT APPLY TO PETITIONS
DESCRIBED IN PARAGRAPH (B) OF THIS SUBDIVISION.
(D) NOTWITHSTANDING ANY PROVISION OF THIS SUBDIVISION AND OF THIS
CHAPTER TO THE CONTRARY, IF THE PETITIONER OR COMPLAINANT REQUESTS AN
OPPORTUNITY TO BE HEARD ON THE PETITION, THE COMMISSION SHALL COMMENCE
THE HEARING WITHIN TEN BUSINESS DAYS OF THE REQUEST AND SHALL MAKE ITS
DETERMINATION WITHIN THIRTY DAYS OF THE LAST DAY OF THE HEARING. IF THE
COMMISSION DIRECTS THAT A HEARING BE CONDUCTED ON THE PETITION, THE
DECISION TO CONDUCT SUCH HEARING SHALL BE MADE WITHIN THIRTY DAYS OF THE
INITIAL FILING OF THE PETITION, AND THE HEARING SHALL BE COMPLETED AND A
DECISION THEREON ISSUED WITHIN NINETY DAYS OF THE INITIAL FILING OF THE
PETITION.
3. ON OR BEFORE FEBRUARY FIFTEENTH OF EACH YEAR, THE COMMISSION SHALL
SUBMIT A REPORT TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE TEMPO-
RARY PRESIDENT OF THE SENATE AND THE CHAIRS OF SENATE AND ASSEMBLY
COMMITTEES ON CORPORATIONS, AUTHORITIES AND COMMISSIONS SETTING FORTH:
(A) THE TOTAL NUMBER OF PETITIONS FILED OR SUBMITTED WITH THE COMMIS-
SION IN THE PREVIOUS CALENDAR YEAR;
(B) A BREAKDOWN OF SUCH PETITIONS BY UTILITY AND SUBJECT MATTER OF THE
PETITION;
(C) THE NUMBER OF SUCH PETITIONS UPHELD, DISMISSED OR OTHERWISE
RESOLVED, BROKEN DOWN BY UTILITY AND SUBJECT MATTER;
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(D) THE NUMBER AND PERCENTAGE OF PETITIONS THAT WERE UPHELD, DISMISSED
OR RESOLVED WITHIN THE STATUTORY TIME FRAME; AND
(E) IF APPLICABLE, THE NUMBER OF PETITIONS THAT WERE NOT COMPLETED OR
RESOLVED WITHIN THE STATUTORY TIME FRAMES, THE REASONS FOR FAILURE TO
MEET THE TIME FRAMES, AND THE AVERAGE LENGTH OF TIME FOR SUCH PETITIONS
TO BE FINALLY COMPLETED OR RESOLVED.
4. IF THE COMMISSION FAILS TO MEET OR COMPLY WITH THE TIME FRAMES SET
FORTH IN THIS SUBDIVISION, THE PETITIONER OR COMPLAINANT MAY COMMENCE A
SPECIAL PROCEEDING AGAINST THE COMMISSION PURSUANT TO SUBDIVISION ONE OF
SECTION SEVENTY-EIGHT HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES.
A PREVAILING PETITIONER OR COMPLAINANT SHALL BE ENTITLED TO REASONABLE
ATTORNEY'S FEES AND COURT COSTS.
S 4. The opening paragraph of section 64 of the public service law is
designated subdivision 1 and a new subdivision 2 is added to read as
follows:
2. NO PROVISION OF THIS ARTICLE OR OF THIS CHAPTER SHALL AUTHORIZE THE
DEPARTMENT OR THE COMMISSION TO WAIVE OR REDUCE COMPLIANCE WITH ANY
REQUIREMENT OF THIS ARTICLE FOR ANY GAS OR ELECTRIC CORPORATION.
S 5. The opening paragraph of section 89-p of the public service law
is designated subdivision 1 and a new subdivision 2 is added to read as
follows:
2. NO PROVISION OF THIS ARTICLE OR OF THIS CHAPTER SHALL AUTHORIZE THE
DEPARTMENT OR COMMISSION TO WAIVE OR REDUCE COMPLIANCE WITH ANY REQUIRE-
MENT OF THIS ARTICLE FOR ANY WATER-WORKS CORPORATION.
S 6. Section 90 of the public service law is amended by adding a new
subdivision 4 to read as follows:
4. NO PROVISIONS OF THIS ARTICLE OR OF THIS CHAPTER SHALL AUTHORIZE
THE DEPARTMENT OR COMMISSION TO WAIVE OR REDUCE COMPLIANCE WITH ANY
REQUIREMENT OF THIS ARTICLE FOR ANY TELEGRAPH OR TELEPHONE CORPORATION.
S 7. Subdivision 2 of section 307 of the state administrative proce-
dure act is amended to read as follows:
2. Unless required for the disposition of ex parte matters authorized
by law, members or employees of an agency assigned to render a decision
or to make findings of fact and conclusions of law in an adjudicatory
proceeding shall not communicate, directly or indirectly, in connection
with any issue of fact, with any person or party, nor, in connection
with any issue of law, with any party or his representative, except upon
notice and opportunity for all parties to participate. Any such agency
member (a) may communicate with other members of the agency, and (b) may
have the aid and advice of agency staff other than staff which has been
or is engaged in the investigative or prosecuting functions in
connection with the case under consideration or factually related case.
[This subdivision does not apply (a) in determining applications for
initial licenses for public utilities or carriers; or (b) to proceedings
involving the validity or application of rates, facilities, or practices
of public utilities or carriers.]
S 8. On or before the one hundred eightieth day after the effective
date of this act, the public service commission shall make or render a
determination on any petition or complaint that was filed with or
submitted to such commission prior to the effective date of this act. As
soon as reasonably possible after the end of the 180 day period, the
public service commission shall issue a report to the governor, the
speaker of the assembly, the temporary president of the senate and the
chairs of the senate and assembly standing committees on corporations,
authorities and commissions stating the total number of petitions or
complaints involved; the number of petitions or complaints dismissed or
A. 9768--A 5
resolved; and if such commission is unable to meet this time frame, the
reasons for the delay or inaction.
S 9. Severability. If any provision of this act or its application to
any person or circumstance is held invalid, this invalidity does not
affect other provisions or applications of this act that can be given
effect without the invalid provision or application, and to this end the
provisions of this act are declared to be severable.
S 10. This act shall take effect immediately.