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This entry was published on 2014-09-22
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SECTION 349-D
Energy services company consumers bill of rights
General Business (GBS) CHAPTER 20, ARTICLE 22-A
§ 349-d. Energy 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) "Customer" shall mean any person who is sold or offered an energy
services contract by an ESCO (i) for residential utility service, or
(ii) through door-to-door sales; and

(d) "Door-to-door sales" shall mean the sale of energy services in
which the ESCO or the ESCO's representative 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 and consummated entirely
by mail, telephone or 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 shall (a) properly identify himself
or herself and the energy services 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 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 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 services for, or
on behalf of, an ESCO shall engage in any deceptive acts or practices in
the marketing of energy services.

4. No contract for provision of energy services by an ESCO shall
require any customer prepayment for energy services. However, an ESCO
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 within thirty
business days following receipt of notice of cancellation.

5. No contract for provision of energy services by an ESCO shall
require the customer to pay any fee for termination 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 energy services for
an average month. To charge a fee based on the estimated bill for energy
services for an average month, an ESCO 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 services
and the fee that would be charged based on such estimate.

6. No material change shall be made in the terms or duration of any
contract for the provision of energy services by an ESCO without the
express consent of the customer. This shall not restrict an ESCO 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 under the terms of the contract as
renewed. The public service commission and the Long Island power
authority may adopt additional guidelines, practices, rules or
regulations governing the renewal process.

7. In every contract for energy services and in all marketing
materials provided to prospective purchasers of such contracts, all
variable charges shall be clearly and conspicuously identified.

8. Any contract for energy 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 services of
the provisions of this section shall be deemed void and unenforceable by
the ESCO as contrary to public policy.

9. The attorney general, 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 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 restitution.

10. In addition to the right of action granted to the attorney general
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. Nothing in this section shall be deemed to limit any authority 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 to sell or offer
for sale any energy services for violation of any provision of law,
rule, regulation or policy enforceable by such commission or authority.

12. Nothing in this section shall be deemed to limit any authority of
the public service commission or the Long Island power authority, which
existed before the effective date of this section, to adopt additional
guidelines, practices, policies, rules or regulations relating to the
marketing practices of energy services companies to residential 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.