S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10804
 
                           I N  A S S E M B L Y
 
                               May 18, 2018
                                ___________
 
 Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
   tee on Corporations, Authorities and Commissions
 
 AN  ACT  to  amend  the  public  service  law,  in relation to licensing
   requirements for energy aggregators, brokers and consultants
 
   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
 12 to read as follows:
                                ARTICLE 12
                   AGGREGATORS, BROKERS AND CONSULTANTS
 SECTION 240. DEFINITIONS.
         241. ACTING WITHOUT A LICENSE.
         242. ENERGY AGGREGATOR, ENERGY  BROKER  AND  ENERGY  CONSULTANT;
                  LICENSING.
         243. PENALTIES FOR VIOLATIONS.
         244. DISCLOSURE OF COMPENSATION.
         245. REBATES PROHIBITED.
   §  240.  DEFINITIONS.  FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS  UNLESS  THE  CONTEXT  INDICATES
 OTHERWISE:
   1.  "BROKER  COMPENSATION"  IS  ANY  PAYMENT MADE TO AN ENERGY BROKER,
 ENERGY AGGREGATOR OR ENERGY CONSULTANT FOR THE PURPOSES OF  SECURING  OR
 PROCURING ENERGY FOR THE END-USE CUSTOMER.
   2.  "CUSTOMER  DISCLOSURE LABEL" MEANS THE STATEMENT AN ENERGY SERVICE
 COMPANY MUST PROVIDE A CUSTOMER WITH WHOM IT ENTERS INTO A SALES  AGREE-
 MENT PURSUANT TO THE RULES AND REGULATIONS OF THE COMMISSION.
   3.  "ENERGY  AGGREGATOR"  MEANS  ANY  PERSON THAT ARRANGES THE SALE OF
 RETAIL ELECTRICITY OR ELECTRIC-RELATED SERVICES OR  RETAIL  NATURAL  GAS
 SUPPLY OR NATURAL GAS-RELATED SERVICES BETWEEN GOVERNMENT AGGREGATORS OR
 PRIVATE  AGGREGATORS AND ELECTRIC POWER SUPPLIERS OR NATURAL GAS SUPPLI-
 ERS, BUT DOES NOT TAKE TITLE TO THE ELECTRIC OR GAS SOLD.
   4. "ENERGY BROKER" MEANS AN ENTITY THAT ASSUMES  THE  CONTRACTUAL  AND
 LEGAL RESPONSIBILITY FOR THE SALE OF ELECTRIC GENERATION SERVICE, TRANS-
 MISSION OR OTHER SERVICES TO END-USE RETAIL CUSTOMERS, BUT DOES NOT TAKE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD15893-01-8

 A. 10804                            2
 
 TITLE TO ANY OF THE POWER SOLD, OR AN ENTITY THAT ASSUMES THE CONTRACTU-
 AL AND LEGAL OBLIGATION TO PROVIDE NATURAL GAS SUPPLY SERVICE TO END-USE
 RETAIL CUSTOMERS, BUT DOES NOT TAKE TITLE TO THE NATURAL GAS.
   5.  "ENERGY  CONSULTANT" MEANS ANY PERSON, FIRM, ASSOCIATION OR CORPO-
 RATION WHO ACTS AS BROKER IN SOLICITING,  NEGOTIATING  OR  ADVISING  ANY
 ELECTRIC  OR  NATURAL GAS CONTRACT, OR ACTS AS AN AGENT IN ACCEPTING ANY
 ELECTRIC OR NATURAL GAS CONTRACT ON BEHALF OF AN ESCO.
   6. "ENERGY SERVICE COMPANY" OR "ESCO" MEANS AN ENTITY ELIGIBLE TO SELL
 ELECTRICITY AND/OR NATURAL GAS TO END-USE  CUSTOMERS  USING  THE  TRANS-
 MISSION  OR  DISTRIBUTION  SYSTEM  OF A UTILITY CORPORATION. ESCO MAY BE
 REFERRED TO HEREIN AS ELECTRIC POWER SUPPLIERS OR NATURAL GAS SUPPLIERS.
   § 241. ACTING WITHOUT A LICENSE. 1. (A) NO PERSON,  FIRM,  ASSOCIATION
 OR CORPORATION SHALL ACT AS AN ENERGY AGGREGATOR, ENERGY BROKER OR ENER-
 GY  CONSULTANT IN THIS STATE WITHOUT HAVING AUTHORITY TO DO SO BY VIRTUE
 OF A LICENSE ISSUED AND IN FORCE PURSUANT  TO  THE  PROVISIONS  OF  THIS
 ARTICLE.
   (B)  ANY PERSON, FIRM, ASSOCIATION OR CORPORATION WHO OR WHICH ACTS AS
 AN ENERGY AGGREGATOR, ENERGY BROKER OR ENERGY CONSULTANT IN VIOLATION OF
 PARAGRAPH (A) OF THIS SUBDIVISION SHALL, IN ADDITION TO OTHER  PENALTIES
 PRESCRIBED  BY  LAW, BE SUBJECT TO A PENALTY NOT TO EXCEED FIVE THOUSAND
 DOLLARS FOR EACH TRANSACTION.
   2. UNLESS LICENSED AS AN ENERGY AGGREGATOR, ENERGY  BROKER  OR  ENERGY
 CONSULTANT,  NO  PERSON,  FIRM, ASSOCIATION OR CORPORATION SHALL IN THIS
 STATE IDENTIFY OR HOLD HIMSELF OR ITSELF OUT TO BE AN ENERGY AGGREGATOR,
 ENERGY BROKER OR ENERGY CONSULTANT.
   3. NO PERSON SHALL ACCEPT ANY COMMISSION, SERVICE  FEE,  BROKERAGE  OR
 OTHER  VALUABLE  CONSIDERATION FOR SELLING, SOLICITING OR NEGOTIATING AN
 ENERGY CONTRACT IN THIS STATE IF THAT PERSON IS REQUIRED TO BE  LICENSED
 UNDER THIS ARTICLE AND IS NOT SO LICENSED, UNLESS STATED OTHERWISE HERE-
 IN.
   4.  EVERY  LICENSEE SHALL NOTIFY THE COMMISSION UPON CHANGING HIS, HER
 OR ITS LEGAL NAME.
   § 242. ENERGY AGGREGATOR, ENERGY BROKER AND ENERGY CONSULTANT; LICENS-
 ING. 1. THE COMMISSION MAY ISSUE A LICENSE TO ANY PERSON, FIRM OR CORPO-
 RATION WHO OR WHICH HAS COMPLIED WITH THE REQUIREMENTS OF THIS  ARTICLE,
 AUTHORIZING  SUCH LICENSEE TO ACT AS AN ENERGY AGGREGATOR, ENERGY BROKER
 OR ENERGY CONSULTANT PROVIDED THAT SUCH:  (I) ENERGY BROKER DEMONSTRATES
 FINANCIAL ACCOUNTABILITY AS EVIDENCED BY  A  BOND  OR  OTHER  METHOD  OF
 FINANCIAL ACCOUNTABILITY IN AN AMOUNT NOT LESS THAN ONE HUNDRED THOUSAND
 DOLLARS;  AND  (II)  ENERGY AGGREGATOR OR ENERGY CONSULTANT DEMONSTRATES
 FINANCIAL ACCOUNTABILITY AS EVIDENCED BY  A  BOND  OR  OTHER  METHOD  OF
 FINANCIAL  ACCOUNTABILITY  IN  AN  AMOUNT  NOT  LESS THAN FIFTY THOUSAND
 DOLLARS.
   2. ANY SUCH LICENSE ISSUED TO ANY PERSON, FIRM  OR  CORPORATION  SHALL
 AUTHORIZE  ONLY  THE  OFFICERS,  DIRECTORS  AND EMPLOYEES THEREOF TO ACT
 INDIVIDUALLY AS ENERGY AGGREGATORS, ENERGY BROKERS AND  ENERGY  CONSULT-
 ANTS, AS APPLICABLE, THEREUNDER. IN ADDITION, A PERSON OR ENTITY THAT IS
 A  CONTRACTOR  IN  AN  EXCLUSIVE RELATIONSHIP WITH A SINGLE LICENSEE MAY
 ALSO ACT UNDER THAT LICENSEE'S LICENSE.  SUCH  LICENSEE  SHALL  BE  HELD
 ACCOUNTABLE FOR THE ACTIONS OF THE EXCLUSIVE CONTRACTOR.
   3.  BEFORE  ANY  ORIGINAL  ENERGY AGGREGATOR, ENERGY BROKER, OR ENERGY
 CONSULTANT LICENSE IS ISSUED THERE SHALL BE ON FILE WITH THE  COMMISSION
 AN  APPLICATION  BY  THE  PROSPECTIVE LICENSEE IN SUCH FORM OR FORMS AND
 SUPPLEMENTS, CONTAINING INFORMATION THE COMMISSION PRESCRIBES, AND MEET-
 ING ELIGIBILITY STANDARDS THE COMMISSION SETS FORTH.

 A. 10804                            3
 
   4. THE COMMISSION MAY REFUSE TO ISSUE ANY APPLICANT LICENSE IF, IN THE
 COMMISSION'S JUDGMENT, THE PROPOSED  LICENSEE  IS  NOT  TRUSTWORTHY  AND
 COMPETENT  TO ACT AS SUCH A LICENSEE, OR HAS GIVEN CAUSE FOR THE REVOCA-
 TION OR SUSPENSION OF SUCH A LICENSE, OR HAS FAILED TO COMPLY  WITH  ANY
 PREREQUISITE FOR THE ISSUANCE OF SUCH LICENSE.
   5.  EACH  LICENSE  APPLICANT  SHALL ANNUALLY PAY THE COMMISSION A FIVE
 HUNDRED DOLLAR LICENSING FEE.
   § 243. PENALTIES FOR VIOLATIONS. 1. THE  COMMISSION  MAY  IN  ANY  ONE
 PROCEEDING,  BY ORDER, REQUIRE THE LICENSEE TO PAY TO THE PEOPLE OF THIS
 STATE A PENALTY IN A SUM NOT EXCEEDING ONE  THOUSAND  DOLLARS  FOR  EACH
 OFFENSE, AND A PENALTY IN A SUM NOT EXCEEDING ONE MILLION DOLLARS IN THE
 AGGREGATE FOR ALL OFFENSES.
   2.  UPON  THE  FAILURE  OF SUCH A LICENSEE TO PAY SUCH PENALTY ORDERED
 PURSUANT TO SUBDIVISION ONE OF THIS SECTION WITHIN TWENTY DAYS AFTER THE
 MAILING OF SUCH ORDER, POSTAGE PREPAID, REGISTERED, AND ADDRESSED TO THE
 LAST KNOWN PLACE OF BUSINESS OF SUCH  LICENSEE,  UNLESS  SUCH  ORDER  IS
 STAYED  BY AN ORDER OF A COURT OF COMPETENT JURISDICTION, THE COMMISSION
 MAY REVOKE THE LICENSE OF SUCH LICENSEE OR MAY SUSPEND THE SAME FOR SUCH
 PERIOD AS HE OR SHE DETERMINES.
   3. THE COMMISSION SHALL RETAIN THE AUTHORITY TO ENFORCE THE PROVISIONS
 OF AND IMPOSE ANY PENALTY OR REMEDY AUTHORIZED BY THIS  CHAPTER  AGAINST
 ANY  PERSON  OR  ENTITY WHO IS UNDER INVESTIGATION FOR OR CHARGED WITH A
 VIOLATION OF THIS CHAPTER, EVEN IF THE PERSON'S OR ENTITY'S  LICENSE  OR
 REGISTRATION HAS BEEN SURRENDERED, OR HAS EXPIRED OR HAS LAPSED BY OPER-
 ATION OF LAW.
   4.  IN  ADDITION  TO ANY PENALTY ORDERED PURSUANT TO THIS SECTION, THE
 COMMISSION MAY REFUSE TO RENEW, REVOKE, OR MAY SUSPEND FOR A PERIOD  THE
 COMMISSION  DETERMINES  THE  LICENSE  OF  ANY  ENERGY AGGREGATOR, ENERGY
 BROKER, AND ENERGY CONSULTANT IF, AFTER NOTICE AND HEARING, THE  COMMIS-
 SION DETERMINES THAT THE LICENSEE HAS:
   (A)  VIOLATED  ANY  APPLICABLE  PUBLIC  SERVICE  LAWS, OR VIOLATED ANY
 APPLICABLE REGULATION, SUBPOENA OR ORDER OF THE COMMISSION OR OF ANOTHER
 STATE'S PUBLIC SERVICE LAW, OR HAS VIOLATED ANY LAW IN THE COURSE OF HIS
 OR HER DEALINGS IN SUCH CAPACITY;
   (B) PROVIDED MATERIALLY INCORRECT, MATERIALLY  MISLEADING,  MATERIALLY
 INCOMPLETE OR MATERIALLY UNTRUE INFORMATION IN THE LICENSE APPLICATION;
   (C)  OBTAINED  OR  ATTEMPTED  TO OBTAIN A LICENSE THROUGH MISREPRESEN-
 TATION OR FRAUD;
   (D)(I) USED FRAUDULENT, COERCIVE OR DISHONEST PRACTICES;
   (II) DEMONSTRATED INCOMPETENCE;
   (III) DEMONSTRATED UNTRUSTWORTHINESS; OR
   (IV) DEMONSTRATED FINANCIAL IRRESPONSIBILITY IN THE CONDUCT  OF  BUSI-
 NESS IN THIS STATE OR ELSEWHERE;
   (E)  IMPROPERLY  WITHHELD,  MISAPPROPRIATED OR CONVERTED ANY MONIES OR
 PROPERTIES RECEIVED IN THE COURSE OF BUSINESS IN  THIS  STATE  OR  ELSE-
 WHERE;
   (F)  INTENTIONALLY  MISREPRESENTED  THE TERMS OF AN ACTUAL OR PROPOSED
 ENERGY SUPPLY CONTRACT;
   (G) ADMITTED OR BEEN FOUND TO HAVE COMMITTED ANY UNFAIR  ENERGY  TRADE
 PRACTICE OR FRAUD;
   (H)  FORGED ANOTHER'S NAME TO AN APPLICATION FOR AN ENERGY CONTRACT OR
 TO ANY DOCUMENT RELATED TO AN ENERGY SUPPLY TRANSACTION;
   (I) KNOWINGLY ACCEPTED ENERGY SUPPLY BUSINESS FROM AN  INDIVIDUAL  WHO
 IS NOT LICENSED; OR
   (J) CEASED TO MEET THE REQUIREMENTS FOR LICENSURE UNDER THIS ARTICLE.

 A. 10804                            4
 
   5. BEFORE REVOKING OR SUSPENDING THE LICENSE OF ANY ENERGY AGGREGATOR,
 ENERGY BROKER, OR ENERGY CONSULTANT LICENSE THE COMMISSION SHALL, EXCEPT
 WHEN  PROCEEDING PURSUANT TO SUBDIVISION SIX OF THIS SECTION, GIVE PRIOR
 WRITTEN NOTICE TO THE LICENSEE AND SHALL HOLD, OR CAUSE TO  BE  HELD,  A
 HEARING NOT LESS THAN TEN DAYS AFTER THE GIVING OF SUCH NOTICE.
   6.  (A)  NO INDIVIDUAL, CORPORATION, FIRM OR ASSOCIATION WHOSE LICENSE
 AS AN ENERGY AGGREGATOR, ENERGY BROKER, OR ENERGY  CONSULTANT  OR  OTHER
 LICENSEE  SUBJECT  TO  SUBDIVISION ONE OF THIS SECTION WHOSE LICENSE HAS
 BEEN REVOKED, AND NO FIRM OR ASSOCIATION OF WHICH SUCH INDIVIDUAL  IS  A
 MEMBER,  AND  NO  CORPORATION  OF WHICH SUCH INDIVIDUAL IS AN OFFICER OR
 DIRECTOR, SHALL BE ENTITLED TO OBTAIN ANY LICENSE UNDER  THE  PROVISIONS
 OF  THIS  ARTICLE FOR A PERIOD OF ONE YEAR AFTER SUCH REVOCATION, OR, IF
 SUCH REVOCATION BE JUDICIALLY REVIEWED, FOR ONE  YEAR  AFTER  THE  FINAL
 DETERMINATION THEREOF AFFIRMING THE ACTION OF THE COMMISSION IN REVOKING
 SUCH LICENSE.
   (B)  IF ANY SUCH LICENSE HELD BY A FIRM, ASSOCIATION OR CORPORATION BE
 REVOKED, NO MEMBER OF SUCH FIRM OR ASSOCIATION AND NO OFFICER OR  DIREC-
 TOR  OF  SUCH  CORPORATION  SHALL  BE  ENTITLED  TO OBTAIN ANY SUCH SAME
 LICENSE, FOR THE SAME PERIOD OF TIME, UNLESS THE COMMISSION  DETERMINES,
 AFTER  NOTICE AND HEARING, THAT SUCH MEMBER, OFFICER OR DIRECTOR WAS NOT
 PERSONALLY AT FAULT IN THE MATTER ON ACCOUNT OF WHICH SUCH  LICENSE  WAS
 REVOKED.
   7.  A  LICENSEE SUBJECT TO THIS ARTICLE SHALL REPORT TO THE COMMISSION
 ANY LEGAL OR ADMINISTRATIVE ACTION TAKEN AGAINST THE LICENSEE IN ANOTHER
 JURISDICTION OR BY ANOTHER GOVERNMENTAL  AGENCY  IN  THIS  STATE  WITHIN
 THIRTY  DAYS  OF  THE FINAL DISPOSITION OF THE MATTER. THIS REPORT SHALL
 INCLUDE A COPY OF THE ORDER, CONSENT TO ORDER OR  OTHER  RELEVANT  LEGAL
 DOCUMENTS.
   8. WITHIN THIRTY DAYS OF THE INITIAL PRETRIAL HEARING DATE, A LICENSEE
 SUBJECT  TO  THIS  ARTICLE  SHALL  REPORT TO THE COMMISSION ANY CRIMINAL
 PROSECUTION OF THE LICENSEE TAKEN IN ANY JURISDICTION. THE REPORT  SHALL
 INCLUDE  A COPY OF THE INITIAL COMPLAINT FILED, THE ORDER RESULTING FROM
 THE HEARING AND ANY OTHER RELEVANT LEGAL DOCUMENTS.
   § 244. DISCLOSURE  OF  COMPENSATION.  1.  ENERGY  AGGREGATORS,  ENERGY
 BROKERS, AND ENERGY CONSULTANTS SHALL BE REQUIRED TO DISCLOSE THEIR FORM
 AND  AMOUNT  OF COMPENSATION TO CUSTOMERS VIA A CONSPICUOUS STATEMENT ON
 ANY SUCH CONTRACT OR AGREEMENT BETWEEN THE ENERGY AGENT, ENERGY CONSULT-
 ANT, ENERGY BROKER OR ENERGY INTERMEDIARY AND ITS CUSTOMER.
   2. BROKER COMPENSATION SHALL BE ADDED AS A PROVISION TO  THE  CUSTOMER
 DISCLOSURE  LABEL  AND  SHALL  REFLECT  THE  AMOUNT AND METHOD OF BROKER
 COMPENSATION.
   § 245. REBATES PROHIBITED. 1. NO ENERGY AGGREGATOR, ENERGY BROKER,  OR
 ENERGY  CONSULTANT  OR  ANY  OTHER PERSON ACTING FOR OR ON BEHALF OF THE
 ENERGY AGGREGATOR, ENERGY BROKER OR ENERGY  CONSULTANT  SHALL  OFFER  OR
 MAKE,  DIRECTLY  OR  INDIRECTLY,  ANY  REBATE OF ANY PORTION OF THE FEE,
 PREMIUM OR CHARGE MADE, OR PAY OR GIVE  TO  ANY  APPLICANT,  OR  TO  ANY
 PERSON,  FIRM, OR CORPORATION ACTING AS AGENT, REPRESENTATIVE, ATTORNEY,
 OR EMPLOYEE OF THE ENERGY RATE PAYER OR  ANY  INTEREST  THEREIN,  EITHER
 DIRECTLY OR INDIRECTLY, ANY COMMISSION, ANY PART OF ITS FEES OR CHARGES,
 OR  ANY  OTHER CONSIDERATION OR VALUABLE THING, AS AN INDUCEMENT FOR, OR
 AS COMPENSATION FOR, ANY ENERGY SUPPLY OR ENERGY-RELATED  BUSINESS,  NOR
 SHALL  ANY  APPLICANT,  OR  ANY  PERSON,  FIRM, OR CORPORATION ACTING AS
 AGENT, REPRESENTATIVE, ATTORNEY, OR EMPLOYEE OF THE ENERGY RATE PAYER OR
 OF THE PROSPECTIVE ENERGY RATE PAYER OR ANYONE HAVING  ANY  INTEREST  IN
 THE  REAL  PROPERTY  KNOWINGLY RECEIVE, DIRECTLY OR INDIRECTLY, ANY SUCH
 REBATE OR OTHER CONSIDERATION OR VALUABLE THING. ANY  PERSON  OR  ENTITY

 A. 10804                            5
 
 WHO VIOLATES THIS SECTION SHALL BE SUBJECT TO A PENALTY OF FIVE THOUSAND
 DOLLARS;  OR  UP  TO  TEN TIMES THE AMOUNT OF ANY COMPENSATION OR REBATE
 RECEIVED OR PAID.
   2. FOR THE PURPOSES OF THIS SECTION, "AN INDUCEMENT FOR, OR AS COMPEN-
 SATION  FOR, ANY ENERGY SUPPLY BUSINESS" SHALL MEAN A BENEFIT GIVEN WITH
 THE INTENTION TO COMPENSATE OR OFFER COMPENSATION, DIRECTLY OR INDIRECT-
 LY, FOR ANY PAST OR PRESENT PLACEMENT FOR A PARTICULAR PIECE  OF  ENERGY
 SUPPLY  OR ENERGY-RELATED BUSINESS TO ANY APPLICANT, OR PERSON, FIRM, OR
 CORPORATION ACTING AS AGENT, REPRESENTATIVE, ATTORNEY,  OR  EMPLOYEE  OF
 THE  ENERGY RATE PAYER, LESSEE, MORTGAGEE OR THE PROSPECTIVE ENERGY RATE
 PAYER, OR ANY INTEREST THEREIN.  NOTHING CONTAINED IN SUBDIVISION ONE OF
 THIS SECTION TO THE CONTRARY SHALL PROHIBIT ANY ENERGY  SUPPLIER  CORPO-
 RATION OR ENERGY AGGREGATOR, ENERGY BROKER, OR ENERGY CONSULTANT, OR ANY
 OTHER  PERSON  ACTING  FOR OR ON BEHALF OF THE ENERGY SERVICE COMPANY OR
 ENERGY AGGREGATOR, ENERGY BROKER OR ENERGY CONSULTANT  FROM  UNDERTAKING
 ANY  USUAL AND CUSTOMARY MARKETING ACTIVITY AIMED AT ACQUAINTING PRESENT
 AND PROSPECTIVE CUSTOMERS WITH THE  ADVANTAGES  OF  USING  A  PARTICULAR
 ENERGY  SUPPLIER OR ENERGY AGGREGATOR, ENERGY BROKER, OR ENERGY CONSULT-
 ANT THAT ARE NOT INTENDED FOR THE PURPOSE OF A  REWARD  FOR  THE  FUTURE
 PLACEMENT  OF,  OR  THE  PAST PLACEMENT, OF A PARTICULAR PIECE OF ENERGY
 SUPPLY BUSINESS.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.