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S02361 Summary:

BILL =
NO    S02361C

SAME AS    Same as A 1558-C

SPONSOR    PARKER

COSPNSR    KRUEGER, MONTGOMERY, PERKINS

MLTSPNSR  =20

Add S349-d, Gen Bus L

Requires energy services companies to provide customers with a consumer =
bill of
rights; establishes civil cause of action and civil penalties for =
violations of
such provisions.
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S02361 Actions:

BILL =
NO    S02361C

02/18/2009 REFERRED TO CONSUMER PROTECTION
03/11/2009 AMEND AND RECOMMIT TO CONSUMER PROTECTION
03/11/2009 PRINT NUMBER 2361A
05/27/2009 AMEND AND RECOMMIT TO CONSUMER PROTECTION
05/27/2009 PRINT NUMBER 2361B
01/06/2010 REFERRED TO CONSUMER PROTECTION
05/25/2010 REPORTED AND COMMITTED TO CODES
06/08/2010 REPORTED AND COMMITTED TO FINANCE
06/15/2010 REPORTED AND COMMITTED TO RULES
06/22/2010 AMEND AND RECOMMIT TO RULES
06/22/2010 PRINT NUMBER 2361C
06/29/2010 ORDERED TO THIRD READING CAL.1296
06/29/2010 SUBSTITUTED BY A1558C
           A01558  AMEND=3DC  Gianaris (MS)
           01/07/2009 referred to consumer affairs and protection
           01/27/2009 reported referred to codes
           02/03/2009 reported referred to ways and means
           02/25/2009 reported=20
           02/26/2009 advanced to third reading cal.136
           03/02/2009 amended on third reading 1558a
           03/09/2009 passed assembly
           03/09/2009 delivered to senate
           03/09/2009 REFERRED TO CONSUMER PROTECTION
           05/26/2009 recalled from senate
           05/26/2009 RETURNED TO ASSEMBLY
           05/26/2009 vote reconsidered - restored to third reading
           05/26/2009 amended on third reading 1558b
           06/02/2009 repassed assembly
           06/02/2009 returned to senate
           06/02/2009 RECOMMITTED TO CONSUMER PROTECTION
           01/06/2010 DIED IN SENATE
           01/06/2010 RETURNED TO ASSEMBLY
           01/06/2010 ordered to third reading cal.137
           02/02/2010 passed assembly
           02/02/2010 delivered to senate
           02/02/2010 REFERRED TO CONSUMER PROTECTION
           06/22/2010 recalled from senate
           06/22/2010 RETURNED TO ASSEMBLY
           06/22/2010 vote reconsidered - restored to third reading
           06/22/2010 amended on third reading 1558c
           06/29/2010 repassed assembly
           06/29/2010 returned to senate
           06/29/2010 COMMITTED TO RULES
           06/29/2010 SUBSTITUTED FOR S2361C
           06/29/2010 3RD READING CAL.1296
           06/29/2010 PASSED SENATE
           06/29/2010 RETURNED TO ASSEMBLY
           08/03/2010 delivered to governor
           08/13/2010 signed chap.416
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S02361 Text:

           =
                S T A T E   O F   N E W   Y O R K
       =
________________________________________________________________________

                                        2361--C

                              2009-2010 Regular Sessions

                                   I N  S E N A T E

                                   February 18, 2009
                                      ___________

       Introduced  by  Sens. PARKER, KRUEGER, MONTGOMERY, PERKINS -- =
read twice
         and ordered printed, and when printed to be committed to the =
Committee
         on Consumer Protection -- committee discharged, bill amended,  =
ordered
         reprinted  as  amended  and recommitted to said committee -- =
committee
         discharged, bill amended, ordered reprinted as amended and =
recommitted
         to  said  committee  --  recommitted  to  the  Committee  on  =
Consumer
         Protection in accordance with Senate Rule 6, sec. 8 -- reported =
favor-
         ably  from  said  committee and committed to the Committee on =
Codes --
         reported favorably from said committee and committed to the  =
Committee
         on  Finance -- reported favorably from said committee and =
committed to
         the Committee on Rules -- committee discharged, bill amended,  =
ordered
         reprinted as amended and recommitted to said committee

       AN ACT to amend the general business law, in relation to =
establishing an
         energy service company consumers bill of rights

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

    1    Section 1. The general business law is amended by adding a new =
section
    2  349-d to read as follows:
    3    S 349-D. ENERGY SERVICES COMPANY CONSUMERS BILL OF RIGHTS. 1.  =
FOR THE
    4  PURPOSE OF THIS SECTION:
    5    (A) "ENERGY SERVICES" SHALL MEAN ELECTRICITY AND/OR NATURAL =
GAS;
    6    (B) "ENERGY SERVICES COMPANY" OR "ESCO" SHALL MEAN AN ENTITY  =
ELIGIBLE
    7  TO  SELL  ENERGY SERVICES TO END-USE CUSTOMERS USING THE =
TRANSMISSION OR
    8  DISTRIBUTION SYSTEM OF A UTILITY;
    9    (C) "CUSTOMER" SHALL MEAN ANY PERSON WHO IS SOLD OR OFFERED AN  =
ENERGY
   10  SERVICES  CONTRACT  BY  AN  ESCO (I) FOR RESIDENTIAL UTILITY =
SERVICE, OR
   11  (II) THROUGH DOOR-TO-DOOR SALES; AND
   12    (D) "DOOR-TO-DOOR SALES" SHALL MEAN THE SALE  OF  ENERGY  =
SERVICES  IN
   13  WHICH  THE  ESCO  OR  THE  ESCO'S REPRESENTATIVE PERSONALLY =
SOLICITS THE
   14  SALE, AND THE BUYER'S AGREEMENT OR OFFER TO PURCHASE IS MADE AT A =
 PLACE
   15  OTHER  THAN THE PLACE OF BUSINESS OF THE SELLER; PROVIDED THAT =
SUCH TERM

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in =
brackets
                             [ ] is old law to be omitted.
                                                                  =
LBD03848-13-0
       S. 2361--C                          2

    1  SHALL NOT INCLUDE ANY SALE WHICH IS CONDUCTED AND  CONSUMMATED  =
ENTIRELY
    2  BY  MAIL,  TELEPHONE  OR  OTHER  ELECTRONIC MEANS, OR DURING A =
SCHEDULED
    3  APPOINTMENT AT  THE  PREMISES  OF  A  BUYER  OF  NONRESIDENTIAL  =
UTILITY
    4  SERVICE,  OR  THROUGH  SOLICITATIONS  OF COMMERCIAL ACCOUNTS AT =
TRADE OR
    5  BUSINESS SHOWS, CONVENTIONS OR EXPOSITIONS.
    6    2. ANY PERSON WHO SELLS OR OFFERS FOR SALE ANY ENERGY  SERVICES =
 TO  A
    7  CUSTOMER FOR OR ON BEHALF OF AN ESCO SHALL (A) PROPERLY IDENTIFY =
HIMSELF
    8  OR  HERSELF AND THE ENERGY SERVICES COMPANY OR COMPANIES WHICH HE =
OR SHE
    9  REPRESENTS; (B) EXPLAIN THAT HE OR SHE DOES NOT REPRESENT A =
DISTRIBUTION
   10  UTILITY; (C) EXPLAIN THE PURPOSE OF THE SOLICITATION; (D)  =
PROVIDE  EACH
   11  PROSPECTIVE  CUSTOMER WITH A COPY OF THE "ESCO CONSUMERS BILL OF =
RIGHTS"
   12  DEVELOPED BY THE PUBLIC SERVICE COMMISSION,  IN  CONSULTATION  =
WITH  THE
   13  LONG ISLAND POWER AUTHORITY, THE STATE CONSUMER PROTECTION BOARD =
AND THE
   14  DEPARTMENT  OF  LAW;  AND  (E)  PROVIDE ANY WRITTEN MATERIALS, =
INCLUDING
   15  CONTRACTS AND THE "ESCO CONSUMERS BILL OF RIGHTS", IN THE SAME  =
LANGUAGE
   16  UTILIZED TO SOLICIT THE PROSPECTIVE CUSTOMER.
   17    3.  NO PERSON WHO SELLS OR OFFERS FOR SALE ANY ENERGY SERVICES =
FOR, OR
   18  ON BEHALF OF, AN ESCO SHALL ENGAGE IN ANY DECEPTIVE ACTS OR =
PRACTICES IN
   19  THE MARKETING OF ENERGY SERVICES.
   20    4. NO CONTRACT FOR PROVISION OF  ENERGY  SERVICES  BY  AN  ESCO =
 SHALL
   21  REQUIRE  ANY  CUSTOMER PREPAYMENT FOR ENERGY SERVICES.  HOWEVER, =
AN ESCO
   22  MAY OFFER A CUSTOMER AN OPTION OF PREPAYMENT.   ANY  CONTRACT  =
PROVIDING
   23  FOR  PREPAYMENT MAY BE CANCELLED BY THE CUSTOMER, WITHOUT ANY =
PENALTY OR
   24  OBLIGATION, WITHIN NINETY CALENDAR  DAYS.  ANY  UNUSED  PORTION  =
OF  THE
   25  PREPAYMENT  SHALL  BE RETURNED TO THE CUSTOMER BY THE ESCO WITHIN =
THIRTY
   26  BUSINESS DAYS FOLLOWING RECEIPT OF NOTICE OF CANCELLATION.
   27    5. NO CONTRACT FOR PROVISION OF  ENERGY  SERVICES  BY  AN  ESCO =
 SHALL
   28  REQUIRE  THE  CUSTOMER TO PAY ANY FEE FOR TERMINATION OR EARLY =
CANCELLA-
   29  TION OF A CONTRACT IN EXCESS OF EITHER (A) ONE HUNDRED DOLLARS  =
FOR  ANY
   30  CONTRACT  WITH  A  REMAINING  TERM  OF  LESS THAN TWELVE MONTHS; =
(B) TWO
   31  HUNDRED DOLLARS FOR ANY CONTRACT WITH A REMAINING TERM OF TWELVE  =
MONTHS
   32  OR  MORE;  OR  (C)  TWICE  THE ESTIMATED BILL FOR ENERGY SERVICES =
FOR AN
   33  AVERAGE MONTH. TO CHARGE A FEE BASED ON THE ESTIMATED  BILL  FOR  =
ENERGY
   34  SERVICES  FOR AN AVERAGE MONTH, AN ESCO MUST HAVE PROVIDED THE =
CUSTOMER,
   35  AT THE TIME THAT THE CONTRACT IS OFFERED, WITH AN ESTIMATE OF THE =
 AVER-
   36  AGE  MONTHLY BILL THAT CUSTOMER WOULD BE CHARGED FOR ENERGY =
SERVICES AND
   37  THE FEE THAT WOULD BE CHARGED BASED ON SUCH ESTIMATE.
   38    6. NO MATERIAL CHANGE SHALL BE MADE IN THE TERMS OR  DURATION  =
OF  ANY
   39  CONTRACT  FOR  THE  PROVISION  OF ENERGY SERVICES BY AN ESCO =
WITHOUT THE
   40  EXPRESS CONSENT OF THE CUSTOMER. THIS SHALL NOT RESTRICT  AN  =
ESCO  FROM
   41  RENEWING  A  CONTRACT  BY CLEARLY INFORMING THE CUSTOMER IN =
WRITING, NOT
   42  LESS THAN THIRTY DAYS NOR MORE THAN SIXTY  DAYS  PRIOR  TO  THE  =
RENEWAL
   43  DATE,  OF  THE  RENEWAL TERMS AND OF HIS OR HER OPTION NOT TO =
ACCEPT THE
   44  RENEWAL OFFER; PROVIDED, HOWEVER, THAT NO FEE  PURSUANT  TO  =
SUBDIVISION
   45  FIVE  OF THIS SECTION SHALL BE CHARGED TO A CUSTOMER WHO OBJECTS =
TO SUCH
   46  RENEWAL NOT LATER THAN THREE BUSINESS DAYS  AFTER  RECEIVING  THE =
 FIRST
   47  BILLING  STATEMENT  FROM  THE  ESCO  UNDER  THE TERMS OF THE =
CONTRACT AS
   48  RENEWED.   THE PUBLIC SERVICE  COMMISSION  AND  THE  LONG  ISLAND =
 POWER
   49  AUTHORITY  MAY  ADOPT  ADDITIONAL  GUIDELINES, PRACTICES, RULES =
OR REGU-
   50  LATIONS GOVERNING THE RENEWAL PROCESS.
   51    7. IN EVERY CONTRACT FOR ENERGY SERVICES AND IN ALL MARKETING  =
MATERI-
   52  ALS  PROVIDED  TO PROSPECTIVE PURCHASERS OF SUCH CONTRACTS, ALL =
VARIABLE
   53  CHARGES SHALL BE CLEARLY AND CONSPICUOUSLY IDENTIFIED.
   54    8. ANY CONTRACT FOR ENERGY SERVICES WHICH DOES  NOT  COMPLY  =
WITH  THE
   55  APPLICABLE PROVISIONS OF THIS SECTION SHALL BE VOID AND =
UNENFORCEABLE AS
   56  CONTRARY  TO  PUBLIC POLICY. ANY WAIVER BY A BUYER OF ENERGY =
SERVICES OF
       S. 2361--C                          3

    1  THE PROVISIONS OF THIS SECTION SHALL BE DEEMED VOID AND =
UNENFORCEABLE BY
    2  THE ESCO AS CONTRARY TO PUBLIC POLICY.
    3    9.  THE  ATTORNEY GENERAL, UPON HIS OR HER OWN MOTION OR UPON =
REFERRAL
    4  FROM THE PUBLIC SERVICE COMMISSION, THE LONG ISLAND POWER  =
AUTHORITY  OR
    5  THE  STATE  CONSUMER  PROTECTION BOARD, MAY BRING A CIVIL ACTION =
AGAINST
    6  ANY ENERGY SERVICES COMPANY THAT VIOLATES ANY PROVISION OF THIS  =
SECTION
    7  AND  MAY  RECOVER (A) A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND =
DOLLARS
    8  PER VIOLATION; AND (B) COSTS AND REASONABLE ATTORNEY'S FEES. IN =
ANY SUCH
    9  PROCEEDING THE COURT MAY DIRECT RESTITUTION.
   10    10. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY =
GENERAL
   11  PURSUANT TO THIS SECTION, ANY PERSON WHO HAS BEEN INJURED BY  =
REASON  OF
   12  ANY VIOLATION OF THIS SECTION MAY BRING AN ACTION IN HIS OR HER =
OWN NAME
   13  TO ENJOIN SUCH UNLAWFUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS =
OR HER
   14  ACTUAL  DAMAGES  OR  FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER, =
OR BOTH
   15  SUCH ACTIONS. THE COURT MAY, IN ITS DISCRETION, INCREASE  THE  =
AWARD  OF
   16  DAMAGES  TO AN AMOUNT NOT TO EXCEED THREE TIMES THE ACTUAL =
DAMAGES UP TO
   17  TEN THOUSAND DOLLARS, IF THE COURT  FINDS  THE  DEFENDANT  =
WILLFULLY  OR
   18  KNOWINGLY  VIOLATED  THIS SECTION. THE COURT MAY AWARD REASONABLE =
ATTOR-
   19  NEY'S FEES TO A PREVAILING PLAINTIFF.
   20    11. NOTHING IN THIS SECTION SHALL BE DEEMED TO LIMIT ANY =
AUTHORITY  OF
   21  THE  PUBLIC SERVICE COMMISSION OR THE LONG ISLAND POWER =
AUTHORITY, WHICH
   22  EXISTED BEFORE THE EFFECTIVE DATE OF THIS SECTION, TO LIMIT, =
SUSPEND  OR
   23  REVOKE  THE  ELIGIBILITY  OF AN ENERGY SERVICES COMPANY TO SELL =
OR OFFER
   24  FOR SALE ANY ENERGY SERVICES FOR VIOLATION  OF  ANY  PROVISION  =
OF  LAW,
   25  RULE, REGULATION OR POLICY ENFORCEABLE BY SUCH COMMISSION OR =
AUTHORITY.
   26    12.  NOTHING IN THIS SECTION SHALL BE DEEMED TO LIMIT ANY =
AUTHORITY OF
   27  THE PUBLIC SERVICE COMMISSION OR THE LONG ISLAND POWER AUTHORITY, =
 WHICH
   28  EXISTED  BEFORE  THE EFFECTIVE DATE OF THIS SECTION, TO ADOPT =
ADDITIONAL
   29  GUIDELINES, PRACTICES, POLICIES, RULES OR REGULATIONS  RELATING  =
TO  THE
   30  MARKETING  PRACTICES  OF  ENERGY  SERVICES  COMPANIES TO =
RESIDENTIAL AND
   31  COMMERCIAL CUSTOMERS, WHETHER IN PERSON (INCLUDING DOOR TO DOOR), =
OR  BY
   32  MAIL,  TELEPHONE  OR  OTHER  ELECTRONIC MEANS, THAT ARE NOT =
INCONSISTENT
   33  WITH THE PROVISIONS OF THIS SECTION.
   34    S 2. The public service commission shall amend its  guidelines, =
 prac-
   35  tices,  policies, rules or regulations governing energy service =
to resi-
   36  dential customers as may be necessary to  implement  the  =
provisions  of
   37  section one of this act.
   38    S  3.    The  Long  Island power authority shall amend its =
regulations
   39  adopted pursuant to section 1020-f of the public authorities law =
and its
   40  guidelines, practices and policies as may be necessary to =
implement  the
   41  provisions of section one of this act.
   42    S  4.  The  public  service  commission, in consultation with =
the Long
   43  Island power authority, the state  consumer  protection  board  =
and  the
   44  department of law, shall develop a short, plain language =
statement of an
   45  "ESCO  consumers  bill  of rights" which shall summarize the =
protections
   46  afforded to consumers of energy services pursuant to  section  =
349-d  of
   47  the general business law and other applicable laws.
   48    S  5.  If any clause, sentence, paragraph, section or part of =
this act
   49  be adjudged by any court of competent jurisdiction to be  =
invalid,  such
   50  judgment shall not affect, impair or invalidate the remainder =
hereof but
   51  shall  be  applied  in its operation to the clause, sentence, =
paragraph,
   52  section or part hereof directly involved in  the  controversy  in =
 which
   53  such judgment shall have been rendered.
   54    S  6. This act shall take effect on the one hundred fiftieth =
day after
   55  it shall have become a law and shall apply to all energy  =
services  sold
   56  or  offered  for sale on or after such date; provided, however, =
that the
       S. 2361--C                          4

    1  public service commission and the Long Island power authority are =
 imme-
    2  diately  authorized  and directed to take any and all actions, =
including
    3  but not limited to the promulgation of any necessary  guidelines, =
 prac-
    4  tices,  policies,  rules  and  regulations,  necessary  to =
implement the
    5  provisions of this act on its effective date.
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