NY Gen Bus L § 349-D (2021)
2021 New York Laws GBS - General Business Article 22-A - Consumer Protection From Deceptive Acts and Practices 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. 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.