2023 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. 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. 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.