S T A T E   O F   N E W   Y O R K
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                                 6205--A
                                                        Cal. No. 424

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             March 17, 2015
                               ___________

Introduced  by M. of A. OTIS, BRENNAN, BUCHWALD, ABINANTI, GALEF -- read
  once and referred to the Committee on  Corporations,  Authorities  and
  Commissions  --  reported  and  referred  to the Committee on Codes --
  reported from committee, advanced to  a  third  reading,  amended  and
  ordered reprinted, retaining its place on the order of third reading

AN  ACT  to  amend  the public service law, in relation to telemarketing
  practices of energy services companies

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

  Section  1.  The public service law is amended by adding a new article
4-C to read as follows:
                               ARTICLE 4-C
                        ENERGY SERVICE COMPANIES
SECTION 89-Q. ENERGY SERVICES COMPANY TELEMARKETING STANDARDS.
  S 89-Q. ENERGY SERVICES COMPANY TELEMARKETING STANDARDS.   1. FOR  THE
PURPOSE OF THIS SECTION:
  (A)  "ENERGY SERVICES COMPANY" OR "ESCO," SHALL MEAN ANY ENTITY ELIGI-
BLE TO SELL ENERGY SERVICES TO END USE CUSTOMERS USING THE  TRANSMISSION
OR DISTRIBUTION SYSTEM OF A UTILITY CORPORATION.
  (B)  "DISTRIBUTION  UTILITY"  SHALL MEAN A GAS OR ELECTRIC CORPORATION
OWNING, OPERATING OR MANAGING ELECTRIC OR GAS FACILITIES FOR THE PURPOSE
OF DISTRIBUTING GAS OR ELECTRICITY TO END USERS.
  (C) "ESCO TELEMARKETING REPRESENTATIVE" SHALL  MEAN  ANY  EMPLOYEE  OR
AGENT  OF AN ESCO THAT ENGAGES IN ANY TELEMARKETING ACTIVITY INTENDED TO
ENROLL, CONTRACT OR SELL ENERGY SERVICES TO END USE CUSTOMERS WITH  SUCH
ESCO.
  (D) "INDEPENDENT THIRD PARTY VERIFICATION" SHALL MEAN THE CONFIRMATION
OF  A  CUSTOMER'S  AGREEMENT  TO TAKE SERVICE FROM AN ESCO, BY AN ENTITY
THAT IS INDEPENDENT OF THE ESCO.
  2. (A) EACH ENERGY SERVICES COMPANY ENGAGING IN TELEMARKETING OR TELE-
MARKETING FIRM ENGAGED IN TELEMARKETING FOR  ENERGY  SERVICES  SHALL  BE

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

                                                           LBD07242-02-5

A. 6205--A                          2

SUBJECT  TO  AND  COMPLY  WITH SECTIONS THREE HUNDRED NINETY-NINE-PP AND
THREE HUNDRED NINETY-NINE-Z OF THE GENERAL BUSINESS LAW,  INCLUDING  BUT
NOT  LIMITED  TO  THE  ADHERENCE  TO THE NATIONAL "DO-NOT-CALL" REGISTRY
ESTABLISHED,  MANAGED  AND  MAINTAINED  BY  THE FEDERAL TRADE COMMISSION
PURSUANT TO 16 CFR SECTION 310.4(B)(1)(III)  AS  AMENDED  FROM  TIME  TO
TIME.
  (B)  EACH ENERGY SERVICES COMPANY SHALL REQUIRE ANY CONTRACT FOR TELE-
MARKETING SERVICES TO REQUIRE THE TELEMARKETER TO HAVE A CERTIFICATE  OF
REGISTRATION  FROM  THE  SECRETARY  OF STATE AND SUCH TELEMARKETER SHALL
AGREE  TO  BE  SUBJECT  TO  AND  COMPLY  WITH  SECTIONS  THREE   HUNDRED
NINETY-NINE-PP  AND  THREE HUNDRED NINETY-NINE-Z OF THE GENERAL BUSINESS
LAW, INCLUDING  BUT  NOT  LIMITED  TO  THE  ADHERENCE  TO  THE  NATIONAL
"DO-NOT-CALL" REGISTRY ESTABLISHED, MANAGED AND MAINTAINED BY THE FEDER-
AL  TRADE  COMMISSION  PURSUANT  TO  16  CFR SECTION 310.4(B)(1)(III) AS
AMENDED FROM TIME TO TIME.
  3. THE COMMISSION SHALL DIRECT EACH ENERGY SERVICES  COMPANY  AND  ANY
ESCO  TELEMARKETING  REPRESENTATIVE  SELLING OR OFFERING FOR SALE ENERGY
SERVICES TO RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMERS TO:
  (A) REMOVE A RESIDENTIAL OR  SMALL  NON-RESIDENTIAL  CUSTOMER'S  NAME,
TELEPHONE,  AND CONTACT INFORMATION FROM ANY ESCO TELEMARKETING DATABASE
UPON SUCH RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMER'S REQUEST;
  (B) PROVIDE  TO  A  POTENTIAL  RESIDENTIAL  OR  SMALL  NON-RESIDENTIAL
CUSTOMER: THE NAME OF THE ESCO TELEMARKETING REPRESENTATIVE ON THE CALL,
THE  NAME  OF  THE  ESCO  ON WHOSE BEHALF THE CALL IS BEING MADE AND THE
PURPOSE OF SUCH CALL AND, UPON REQUEST, THE ESCO TELEMARKETING REPRESEN-
TATIVE'S IDENTIFICATION NUMBER;
  (C)  IMMEDIATELY  TRANSFER  A  RESIDENTIAL  OR  SMALL  NON-RESIDENTIAL
CUSTOMER TO A REPRESENTATIVE WHO SPEAKS THE RESIDENTIAL OR SMALL NON-RE-
SIDENTIAL CUSTOMER'S PRIMARY LANGUAGE OR TERMINATE THE CALL;
  (D)  USE  INDEPENDENT THIRD PARTY VERIFICATION OF TELEMARKETING TRANS-
ACTIONS, AS APPROVED BY THE COMMISSION, PRIOR TO ENROLLING A RESIDENTIAL
OR SMALL NON-RESIDENTIAL CUSTOMER; AND
  (E) PROHIBIT ESCO TELEMARKETING REPRESENTATIVES FROM ASSERTING THAT AN
ESCO IS ACTING ON BEHALF OF A DISTRIBUTION UTILITY.
  4. (A) THE COMMISSION IS HEREBY  GRANTED  THE  AUTHORITY,  SUBJECT  TO
PARAGRAPH  (B)  OF  THIS  SUBDIVISION,  TO ASSESS A CIVIL PENALTY NOT TO
EXCEED ONE THOUSAND DOLLARS AGAINST ANY ESCO WHEN SUCH ESCO OR ITS  ESCO
TELEMARKETING REPRESENTATIVES KNOWINGLY FAILS OR NEGLECTS TO COMPLY WITH
ANY  PROVISION OF THIS SECTION OR ANY REGULATION OR ORDER OF THE COMMIS-
SION IMPLEMENTING OR ENFORCING THE PROVISIONS OF THIS  SECTION.  IN  THE
CASE  OF  A CONTINUING VIOLATION, THE COMMISSION IS HEREBY AUTHORIZED TO
DEEM EACH DAY A SEPARATE AND DISTINCT OFFENSE.
  (B) WHENEVER THE COMMISSION HAS REASON TO BELIEVE THAT AN ESCO  SHOULD
BE SUBJECT TO IMPOSITION OF A CIVIL PENALTY OR PENALTIES AS SET FORTH IN
THIS  SUBDIVISION,  THE  COMMISSION  SHALL NOTIFY SUCH ESCO. SUCH NOTICE
SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO (I)  THE  DATE  AND  A  BRIEF
DESCRIPTION  OF  THE  FACTS AND NATURE OF EACH ACT OR FAILURE TO ACT FOR
WHICH SUCH PENALTY IS PROPOSED; (II) THE AMOUNT OF EACH PENALTY THAT THE
COMMISSION PROPOSES TO ASSESS; AND (III) THE OPTION TO REQUEST A HEARING
TO DEMONSTRATE WHY THE PROPOSED  PENALTY  OR  PENALTIES  SHOULD  NOT  BE
ASSESSED AGAINST SUCH ESCO.
  5.  NOTHING  IN THIS SECTION SHALL BE DEEMED TO LIMIT ANY AUTHORITY OF
THE COMMISSION OR THE LONG ISLAND POWER AUTHORITY TO LIMIT,  SUSPEND  OR
REVOKE THE ELIGIBILITY OF AN ENERGY SERVICES COMPANY OR ESCO TELEMARKET-
ING  REPRESENTATIVE  TO  SELL,  OFFER,  OR  MARKET  ENERGY  SERVICES FOR

A. 6205--A                          3

VIOLATION OF ANY PROVISION OF LAW, RULE, REGULATION OR POLICY  ENFORCEA-
BLE BY THE COMMISSION OR THE LONG ISLAND POWER AUTHORITY.
  6. NOTHING IN THIS SECTION SHALL LIMIT THE AUTHORITY OF THE COMMISSION
OR  THE  LONG  ISLAND POWER AUTHORITY TO ADOPT ADDITIONAL ORDERS, GUIDE-
LINES, PRACTICES, POLICIES, RULES OR REGULATIONS RELATING TO THE MARKET-
ING PRACTICES OF ENERGY SERVICES COMPANIES TO RESIDENTIAL, SMALL NON-RE-
SIDENTIAL AND COMMERCIAL CUSTOMERS, WHETHER IN PERSON (INCLUDING DOOR TO
DOOR), OR BY MAIL, TELEPHONE OR OTHER ELECTRONIC  MEANS,  THAT  ARE  NOT
INCONSISTENT WITH THE PROVISIONS OF THIS SECTION.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided however that the public  service  commission
is  authorized  and  directed to take any and all actions, including but
not limited to the promulgation of any  orders,  guidelines,  practices,
policies, rules and regulations necessary to implement the provisions of
this act on or before such effective date.