N.Y. General Business Law § 349-d: Energy services company consumers bill of rights

§ 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. A change in price or a change to or

from fixed or variable pricing shall be deemed to be material. 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 whose express consent has not been obtained to any change in

material terms and conditions, or 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. In any

notice regarding contract renewability, the provider shall disclose the

following information as it exists at the time of such notice: (i) the

price charged for energy services; (ii) the price it proposes to charge

upon renewal; (iii) the price that is charged by the customer's

distribution utility; and (iv) information notifying the customer how

they may compare past bills with what they would have been charged had

they received energy services from their respective distribution

utility, including, the internet address of any bill calculator offered

by such customer's distribution utility's website.

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. (a) The first page of each billing statement from an ESCO delivered

to the customer, whether by the ESCO directly, by a utility corporation,

by a municipality, or by any other method, shall include a side-by-side

comparison showing both the price charged by the ESCO for commodity

service and the price charged to the customer for delivery service

during the prior billing period, and the price the customer would have

paid had the customer taken both commodity and delivery service from

their local utility corporation or municipality, as applicable. Such

statement shall also include, separately and apart from the price

charged by the ESCO for commodity service and the price charged to the

customer for delivery service, an itemized list of prices charged by the

ESCO for any energy-related value-added products provided by the ESCO

during the prior billing period.

(b) For the purposes of this subdivision and subdivision ten of this

section, "customer" shall mean a person receiving residential utility

service from an ESCO or a small non-residential customer, as that term

is defined in section sixty-six-w of the public service law, receiving

utility service from an ESCO.

10. Every twelve months, an ESCO shall provide each of its customers

with a statement comparing the price charged by the ESCO for commodity

service, the price charged to the customer for delivery service and any

other energy-related value-added products charged to the customer as a

customer of the ESCO over the prior twelve-month period with the price

such customer would have paid had such customer taken both commodity and

delivery service from the local utility corporation or municipality, as

applicable, for such period. Such statement shall convey such

information in a manner that unambiguously conveys whether the customer

is saving money or paying a premium for service from the ESCO over such

period.

10-a. (a) ESCOs shall be responsible for any costs incurred by a

utility corporation or municipality to comply with subdivisions nine and

ten of this section, and any such costs incurred by a utility

corporation or municipality shall be recoverable from the ESCO, in a

manner prescribed by the public service commission. ESCOs shall not

recover any costs from customers related to compliance with subdivisions

nine and ten of this section.

(b) For the purposes of this subdivision, "customer" shall mean a

person receiving energy service from an ESCO.

11. The attorney general, upon their 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.

12. 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 their own name to

enjoin such unlawful act or practice, an action to recover their 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.

13. 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.

14. 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.