N.Y. Gen. Bus. Law § 349-d

§ 349-d. Energy services company consumers bill of rights. 1. For the\npurpose of this section:\n (a) "Energy services" shall mean electricity and/or natural gas;\n (b) "Energy services company" or "ESCO" shall mean an entity eligible\nto sell energy services to end-use customers using the transmission or\ndistribution system of a utility;\n (c) "Customer" shall mean any person who is sold or offered an energy\nservices contract by an ESCO (i) for residential utility service, or\n(ii) through door-to-door sales; and\n (d) "Door-to-door sales" shall mean the sale of energy services in\nwhich the ESCO or the ESCO's representative personally solicits the\nsale, and the buyer's agreement or offer to purchase is made at a place\nother than the place of business of the seller; provided that such term\nshall not include any sale which is conducted and consummated entirely\nby mail, telephone or other electronic means, or during a scheduled\nappointment at the premises of a buyer of nonresidential utility\nservice, or through solicitations of commercial accounts at trade or\nbusiness shows, conventions or expositions.\n 2. Any person who sells or offers for sale any energy services to a\ncustomer for or on behalf of an ESCO shall (a) properly identify himself\nor herself and the energy services company or companies which he or she\nrepresents; (b) explain that he or she does not represent a distribution\nutility; (c) explain the purpose of the solicitation; (d) provide each\nprospective customer with a copy of the "ESCO consumers bill of rights"\ndeveloped by the public service commission, in consultation with the\nLong Island power authority, the state consumer protection board and the\ndepartment of law; and (e) provide any written materials, including\ncontracts and the "ESCO consumers bill of rights", in the same language\nutilized to solicit the prospective customer.\n 3. No person who sells or offers for sale any energy services for, or\non behalf of, an ESCO shall engage in any deceptive acts or practices in\nthe marketing of energy services.\n 4. No contract for provision of energy services by an ESCO shall\nrequire any customer prepayment for energy services. However, an ESCO\nmay offer a customer an option of prepayment. Any contract providing for\nprepayment may be cancelled by the customer, without any penalty or\nobligation, within ninety calendar days. Any unused portion of the\nprepayment shall be returned to the customer by the ESCO within thirty\nbusiness days following receipt of notice of cancellation.\n 5. No contract for provision of energy services by an ESCO shall\nrequire the customer to pay any fee for termination or early\ncancellation of a contract in excess of either (a) one hundred dollars\nfor any contract with a remaining term of less than twelve months; (b)\ntwo hundred dollars for any contract with a remaining term of twelve\nmonths or more; or (c) twice the estimated bill for energy services for\nan average month. To charge a fee based on the estimated bill for energy\nservices for an average month, an ESCO must have provided the customer,\nat the time that the contract is offered, with an estimate of the\naverage monthly bill that customer would be charged for energy services\nand the fee that would be charged based on such estimate.\n 6. No material change shall be made in the terms or duration of any\ncontract for the provision of energy services by an ESCO without the\nexpress consent of the customer. A change in price or a change to or\nfrom fixed or variable pricing shall be deemed to be material. This\nshall not restrict an ESCO from renewing a contract by clearly informing\nthe customer in writing, not less than thirty days nor more than sixty\ndays prior to the renewal date, of the renewal terms and of his or her\noption not to accept the renewal offer; provided, however, that no fee\npursuant to subdivision five of this section shall be charged to a\ncustomer whose express consent has not been obtained to any change in\nmaterial terms and conditions, or who objects to such renewal not later\nthan three business days after receiving the first billing statement\nfrom the ESCO under the terms of the contract as renewed. The public\nservice commission and the Long Island power authority may adopt\nadditional guidelines, practices, rules or regulations governing the\nrenewal process.\n 7. In every contract for energy services and in all marketing\nmaterials provided to prospective purchasers of such contracts, all\nvariable charges shall be clearly and conspicuously identified. In any\nnotice regarding contract renewability, the provider shall disclose the\nfollowing information as it exists at the time of such notice: (i) the\nprice charged for energy services; (ii) the price it proposes to charge\nupon renewal; (iii) the price that is charged by the customer's\ndistribution utility; and (iv) information notifying the customer how\nthey may compare past bills with what they would have been charged had\nthey received energy services from their respective distribution\nutility, including, the internet address of any bill calculator offered\nby such customer's distribution utility's website.\n 8. Any contract for energy services which does not comply with the\napplicable provisions of this section shall be void and unenforceable as\ncontrary to public policy. Any waiver by a buyer of energy services of\nthe provisions of this section shall be deemed void and unenforceable by\nthe ESCO as contrary to public policy.\n 9. (a) The first page of each billing statement from an ESCO delivered\nto the customer, whether by the ESCO directly, by a utility corporation,\nby a municipality, or by any other method, shall include a side-by-side\ncomparison showing both the price charged by the ESCO for commodity\nservice and the price charged to the customer for delivery service\nduring the prior billing period, and the price the customer would have\npaid had the customer taken both commodity and delivery service from\ntheir local utility corporation or municipality, as applicable. Such\nstatement shall also include, separately and apart from the price\ncharged by the ESCO for commodity service and the price charged to the\ncustomer for delivery service, an itemized list of prices charged by the\nESCO for any energy-related value-added products provided by the ESCO\nduring the prior billing period.\n (b) For the purposes of this subdivision and subdivision ten of this\nsection, "customer" shall mean a person receiving residential utility\nservice from an ESCO or a small non-residential customer, as that term\nis defined in section sixty-six-w of the public service law, receiving\nutility service from an ESCO.\n 10. Every twelve months, an ESCO shall provide each of its customers\nwith a statement comparing the price charged by the ESCO for commodity\nservice, the price charged to the customer for delivery service and any\nother energy-related value-added products charged to the customer as a\ncustomer of the ESCO over the prior twelve-month period with the price\nsuch customer would have paid had such customer taken both commodity and\ndelivery service from the local utility corporation or municipality, as\napplicable, for such period. Such statement shall convey such\ninformation in a manner that unambiguously conveys whether the customer\nis saving money or paying a premium for service from the ESCO over such\nperiod.\n 10-a. (a) ESCOs shall be responsible for any costs incurred by a\nutility corporation or municipality to comply with subdivisions nine and\nten of this section, and any such costs incurred by a utility\ncorporation or municipality shall be recoverable from the ESCO, in a\nmanner prescribed by the public service commission. ESCOs shall not\nrecover any costs from customers related to compliance with subdivisions\nnine and ten of this section.\n (b) For the purposes of this subdivision, "customer" shall mean a\nperson receiving energy service from an ESCO.\n 11. The attorney general, upon their own motion or upon referral from\nthe public service commission, the Long Island power authority or the\ndepartment of state, may bring a civil action against any energy\nservices company that violates any provision of this section and may\nrecover (a) a civil penalty not to exceed one thousand dollars per\nviolation; and (b) costs and reasonable attorney's fees. In any such\nproceeding the court may direct restitution.\n 12. In addition to the right of action granted to the attorney general\npursuant to this section, any person who has been injured by reason of\nany violation of this section may bring an action in their own name to\nenjoin such unlawful act or practice, an action to recover their actual\ndamages or five hundred dollars, whichever is greater, or both such\nactions. The court may, in its discretion, increase the award of damages\nto an amount not to exceed three times the actual damages up to ten\nthousand dollars, if the court finds the defendant willfully or\nknowingly violated this section. The court may award reasonable\nattorney's fees to a prevailing plaintiff.\n 13. Nothing in this section shall be deemed to limit any authority of\nthe public service commission or the Long Island power authority, which\nexisted before the effective date of this section, to limit, suspend or\nrevoke the eligibility of an energy services company to sell or offer\nfor sale any energy services for violation of any provision of law,\nrule, regulation or policy enforceable by such commission or authority.\n 14. Nothing in this section shall be deemed to limit any authority of\nthe public service commission or the Long Island power authority, which\nexisted before the effective date of this section, to adopt additional\nguidelines, practices, policies, rules or regulations relating to the\nmarketing practices of energy services companies to residential and\ncommercial customers, whether in person (including door to door), or by\nmail, telephone or other electronic means, that are not inconsistent\nwith the provisions of this section.\n