Senate Bill S4617

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4617
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             February 22, 2017
                                ___________
 
 Introduced  by  Sen.  FELDER -- read twice and ordered printed, and when
   printed to be committed to the Committee on Cities
 
 AN ACT to amend the general city law and the general  business  law,  in
   relation  to regulating the contracts of energy services companies and
   telecommunications services companies

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general city law is amended by adding a new article 9-A
 to read as follows:
                                ARTICLE 9-A
     ENFORCEMENT POWERS OF STATE LAWS CONCERNING SERVICES DISTRIBUTION
                                 COMPANIES
 SECTION 135. ENFORCEMENT PROVISIONS OF THE ENERGY AND TELECOMMUNICATIONS
                SERVICES COMPANY CONSUMERS BILL OF RIGHTS.
   §  135. ENFORCEMENT OF PROVISIONS OF THE ENERGY AND TELECOMMUNICATIONS
 SERVICES COMPANY CONSUMERS BILL OF RIGHTS. 1. THE CORPORATION COUNSEL OR
 CITY ATTORNEY OF ANY CITY MAY, IN ACCORDANCE WITH SUBDIVISIONS  TEN  AND
 ELEVEN  OF  SECTION  THREE  HUNDRED FORTY-NINE-D OF THE GENERAL BUSINESS
 LAW, BRING A CIVIL ACTION TO ENFORCE THE PROVISIONS OF  THE  ENERGY  AND
 TELECOMMUNICATIONS SERVICES COMPANY CONSUMERS BILL OF RIGHTS AGAINST ANY
 SERVICES  DISTRIBUTION  COMPANY, ITS SALES AGENT, AND/OR ITS THIRD PARTY
 REPRESENTATIVE. SUCH ACTION MAY BE BROUGHT UPON HIS OR HER  OWN  MOTION,
 OR  UPON  REFERRAL FROM THE ATTORNEY GENERAL, THE PUBLIC SERVICE COMMIS-
 SION, THE LONG ISLAND POWER AUTHORITY OR THE DEPARTMENT OF STATE.
   2. THE CORPORATION COUNSEL OR CITY ATTORNEY OF ANY CITY  MAY  FURTHER,
 IN  LIEU  OF  BRINGING  AN  ACTION  PURSUANT  TO SUBDIVISION ONE OF THIS
 SECTION, REQUEST THAT A CIVIL ACTION BE BROUGHT BY THE ATTORNEY  GENERAL
 TO  ENFORCE THE PROVISIONS OF THE ENERGY AND TELECOMMUNICATIONS SERVICES
 COMPANY CONSUMERS BILL OF RIGHTS AGAINST A SERVICES DISTRIBUTION  COMPA-
 NY, ITS SALES AGENT, AND/OR ITS THIRD PARTY REPRESENTATIVE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07695-01-7
              

 S. 4617                             2
 
   §  2.  Section  349-d of the general business law, as added by chapter
 416 of the laws of 2010, subdivision 9 as amended by section 34 of  part
 A of chapter 62 of the laws of 2011, is amended to read as follows:
   § 349-d. Energy AND TELECOMMUNICATIONS services company consumers bill
 of rights. 1. For the purpose of this section:
   (a) "Energy services" shall mean electricity and/or natural gas;
   (b)  "Energy services company" or "ESCO" shall mean an entity eligible
 to sell energy services to end-use customers using the  transmission  or
 distribution system of a utility;
   (c)  "TELECOMMUNICATIONS  SERVICES"  SHALL  MEAN  LAND  LINE TELEPHONE
 SERVICES, INCLUDING LONG DISTANCE LAND LINE TELEPHONE SERVICES;
   (D) "TELECOMMUNICATIONS SERVICES COMPANY"  OR  "TSCO"  SHALL  MEAN  AN
 ENTITY  ELIGIBLE TO SELL TELECOMMUNICATION SERVICES TO END-USE CUSTOMERS
 USING A LAND LINE TELEPHONE NETWORK, INCLUDING  WIRES,  SWITCHES  AND/OR
 OTHER TELEPHONE NETWORK SERVICES;
   (E)  "SERVICES  DISTRIBUTION  COMPANY"  OR  "SDCO"  SHALL MEAN AN ESCO
 AND/OR A TSCO;
   (F) "Customer" shall mean any person who is sold or offered an  energy
 services  contract  by an [ESCO] SDCO (i) for residential ENERGY utility
 OR TELECOMMUNICATION service, or (ii) THROUGH TELEPHONE SALES, OR  (III)
 through door-to-door sales; and
   (G)  "TELEPHONE  SALES"  SHALL MEAN THE SALE OF ENERGY OR TELECOMMUNI-
 CATION  SERVICES  IN  WHICH  THE  SDCO  OR  THE  SDCO'S   REPRESENTATIVE
 PERSONALLY  SOLICITS  THE  SALE,  AND  THE BUYER'S AGREEMENT OR OFFER TO
 PURCHASE IS MADE OVER THE TELEPHONE; PROVIDED THAT SUCH TERM  SHALL  NOT
 INCLUDE  ANY SALE WHICH IS CONDUCTED IN WRITING AND CONSUMMATED ENTIRELY
 BY MAIL, OR IN WRITING BY OTHER ELECTRONIC MEANS, OR DURING A  SCHEDULED
 APPOINTMENT  AT  THE  PREMISES  OF  A  BUYER  OF  NONRESIDENTIAL UTILITY
 SERVICE, OR THROUGH SOLICITATIONS OF COMMERCIAL  ACCOUNTS  AT  TRADE  OR
 BUSINESS SHOWS, CONVENTIONS OR EXPOSITIONS.
   (H) "Door-to-door sales" shall mean the sale of energy OR TELECOMMUNI-
 CATION  services  in which the [ESCO] SDCO or the [ESCO's] SDCO'S repre-
 sentative personally solicits the sale, and  the  buyer's  agreement  or
 offer to purchase is made at a place other than the place of business of
 the  seller; provided that such term shall not include any sale which is
 conducted IN WRITING and consummated entirely by mail, telephone  or  IN
 WRITING  BY other electronic means, or during a scheduled appointment at
 the premises of a buyer of nonresidential utility  service,  or  through
 solicitations  of  commercial  accounts  at  trade  or  business  shows,
 conventions or expositions.
   2. Any person who sells or offers for sale any energy  services  to  a
 customer  for or on behalf of an [ESCO] SDCO shall (a) properly identify
 himself or herself and the [energy]  services  DISTRIBUTION  company  or
 companies  which  he  or she represents; (b) explain that he or she does
 not represent a distribution utility; (c) explain  the  purpose  of  the
 solicitation;  (d)  provide each prospective customer with a copy of the
 "[ESCO] SDCO consumers bill of rights" developed by the  public  service
 commission,  in  consultation  with the Long Island power authority, the
 state consumer protection board and  the  department  of  law;  and  (e)
 provide  any written materials, including contracts and the "[ESCO] SDCO
 consumers bill of rights", in the same language utilized to solicit  the
 prospective customer.
   3.  No  person who sells or offers for sale any energy OR TELECOMMUNI-
 CATION services for, or on behalf of, an [ESCO] SDCO shall:
   (A) engage in any deceptive acts or  practices  in  the  marketing  of
 energy OR TELECOMMUNICATIONS services[.] ;

 S. 4617                             3
 
   (B)  BE  RETAINED OR COMPENSATED ON A COMMISSION BASIS, OR BE PROVIDED
 REMUNERATION FOR THE NUMBER OF CONTRACTS FOR THE PROVISION OF ENERGY  OR
 TELECOMMUNICATION SERVICES SOLD BY SUCH PERSON; OR
   (C)  COMPLETE A TELEPHONE SALE FOR THE PROVISION OF ENERGY OR TELECOM-
 MUNICATION SERVICES, WITHOUT FIRST OBTAINING ON BEHALF OF  THE  SDCO,  A
 SIGNED,  WRITTEN  CONTRACT  FROM THE CUSTOMER AGREEING TO SUCH SALE, AND
 ACKNOWLEDGING RECEIPT OF THE SDCO CONSUMERS BILL OF RIGHTS  REQUIRED  TO
 BE PROVIDED PURSUANT TO THIS SECTION.
   4.  No  contract  for  provision  of energy services by an [ESCO] SDCO
 shall require any customer prepayment for  energy  OR  TELECOMMUNICATION
 services.  However,  an  [ESCO]  SDCO  may offer a customer an option of
 prepayment. Any contract providing for prepayment may  be  cancelled  by
 the  customer, without any penalty or obligation, within ninety calendar
 days. Any unused portion of the prepayment  shall  be  returned  to  the
 customer  by  the  [ESCO]  SDCO  within  thirty  business days following
 receipt of notice of cancellation.
   5. No contract for provision of energy OR  TELECOMMUNICATION  services
 by  an  [ESCO] SDCO shall require the customer to pay any fee for termi-
 nation or early cancellation of a contract in excess of either  (a)  one
 hundred  dollars  for  any  contract  with a remaining term of less than
 twelve months; (b) two hundred dollars for any contract with a remaining
 term of twelve months or more; or (c) twice the estimated bill for ener-
 gy OR TELECOMMUNICATION services for an average month. To charge  a  fee
 based  on  the  estimated bill for energy OR TELECOMMUNICATIONS services
 for an average month, an [ESCO] SDCO must have provided the customer, at
 the time that the contract is offered, with an estimate of  the  average
 monthly  bill  that customer would be charged for energy OR TELECOMMUNI-
 CATION services and the fee that would be charged based  on  such  esti-
 mate.
   6.  No  material  change shall be made in the terms or duration of any
 contract for the provision of energy OR TELECOMMUNICATION services by an
 [ESCO] SDCO without the express consent of the customer. This shall  not
 restrict  an  [ESCO]  SDCO from renewing a contract by clearly informing
 the customer in writing, not less than thirty days nor more  than  sixty
 days  prior  to the renewal date, of the renewal terms and of his or her
 option not to accept the renewal offer; provided, however, that  no  fee
 pursuant  to  subdivision  five  of  this  section shall be charged to a
 customer who objects to such renewal not later than three business  days
 after  receiving  the first billing statement from the [ESCO] SDCO under
 the terms of the contract as renewed. The public service commission  and
 the  Long  Island power authority may adopt additional guidelines, prac-
 tices, rules or regulations governing the renewal process.
   7. In every contract for energy OR TELECOMMUNICATION services  and  in
 all  marketing  materials  provided  to  prospective  purchasers of such
 contracts, all variable charges shall be clearly and conspicuously iden-
 tified.
   8. Any contract for energy OR TELECOMMUNICATION  services  which  does
 not  comply with the applicable provisions of this section shall be void
 and unenforceable as contrary to public policy. Any waiver by a buyer of
 energy OR TELECOMMUNICATION services of the provisions of  this  section
 shall be deemed void and unenforceable by the [ESCO] SDCO as contrary to
 public policy.
   9.  THE  PROVISIONS  OF  THIS  SECTION SHALL APPLY TO ALL SALES AGENTS
 AND/OR THIRD PARTY REPRESENTATIVES OF ALL SDCOS AND THE  SDCO  SHALL  BE
 DEEMED  RESPONSIBLE  FOR ALL CONDUCT AND ACTIVITIES OF SUCH SALES AGENTS
 AND/OR THIRD PARTY REPRESENTATIVES.

 S. 4617                             4
 
   10. The attorney general AND/OR THE COUNSEL FOR ANY CITY  PURSUANT  TO
 ARTICLE  NINE-A  OF  THE GENERAL CITY LAW, upon his or her own motion or
 upon referral from the public service commission, the Long Island  power
 authority  or  the department of state, may bring a civil action against
 any energy services company, ANY TELECOMMUNICATIONS SERVICES COMPANY, OR
 ANY SALES AGENT AND/OR THIRD PARTY REPRESENTATIVE OF ANY ENERGY SERVICES
 COMPANY   OR  TELECOMMUNICATIONS  SERVICES  COMPANY  that  violates  any
 provision of this section and may recover (a) a  civil  penalty  not  to
 exceed  one thousand dollars per violation; and (b) costs and reasonable
 attorney's fees. In any such proceeding the court  may  direct  restitu-
 tion.
   [10]  11.  In  addition to the right of action granted to the attorney
 general AND/OR THE COUNSEL FOR ANY CITY pursuant to  this  section,  any
 person  who  has been injured by reason of any violation of this section
 may bring an action in his or her own name to enjoin such  unlawful  act
 or  practice,  an  action  to  recover his or her actual damages or five
 hundred 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 ten thousand dollars,  if
 the  court  finds  the  defendant  willfully  or knowingly violated this
 section. The court may award reasonable attorney's fees to a  prevailing
 plaintiff.
   [11] 12. Nothing in this section shall be deemed to limit any authori-
 ty  of the public service commission or the Long Island power authority,
 which existed before the effective  date  of  this  section,  to  limit,
 suspend or revoke the eligibility of an energy services company OR TELE-
 COMMUNICATIONS  SERVICES  COMPANY  to  sell or offer for sale any energy
 services OR TELECOMMUNICATIONS SERVICES for violation of  any  provision
 of  law,  rule,  regulation  or policy enforceable by such commission or
 authority.
   [12] 13. Nothing in this section shall be deemed to limit any authori-
 ty of the public service commission or the Long Island power  authority,
 which  existed before the effective date of this section, to adopt addi-
 tional guidelines, practices, policies, rules or regulations relating to
 the marketing practices of energy  services  companies  OR  TELECOMMUNI-
 CATIONS  SERVICES  COMPANIES  to  residential  and commercial customers,
 whether in person (including BY TELEPHONE OR BY door  to  door),  or  by
 mail[,  telephone]  or other electronic means, that are not inconsistent
 with the provisions of this section.
   § 3. This act shall take effect immediately.