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

                                  8164

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             August 30, 2013
                               ___________

Introduced  by  M. of A. OTIS -- read once and referred to the Committee
  on Corporations, Authorities and Commissions

AN ACT to amend the public service law, in relation to  authorizing  the
  public  service commission to issue fines to energy services companies
  that violate the do not call registry

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

  Section  1.  The public service law is amended by adding a new section
103 to read as follows:
  S 103. VIOLATION OF DO NOT CALL REGISTRY.  THE COMMISSION SHALL  ISSUE
A  FINE  OF  NO  GREATER  THAN FIVE HUNDRED DOLLARS PER VIOLATION TO ANY
ENERGY SERVICES COMPANY  WHICH  MAKES  UNSOLICITED  TELEMARKETING  SALES
CALLS  TO  CUSTOMERS  WHOSE NUMBERS ARE INCLUDED ON THE NO TELEMARKETING
SALES CALLS STATEWIDE REGISTRY FOR AT LEAST THIRTY-ONE DAYS PRIOR TO THE
DATE THE CALL IS MADE.
  S 2. This act shall take effect immediately.






 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11695-02-3


              

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

                                 8164--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             August 30, 2013
                               ___________

Introduced  by M. of A. OTIS, BRENNAN, McDONALD -- Multi-Sponsored by --
  M. of A.   BUCHWALD -- read once and  referred  to  the  Committee  on
  Corporations,  Authorities  and  Commissions  --  recommitted  to  the
  Committee on Corporations, Authorities and Commissions  in  accordance
  with  Assembly  Rule  3, sec. 2 -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the public service law, in relation to  marketing  prac-
  tices of energy services companies

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

  Section 1. Legislative intent. The legislature finds that on March 14,
1996, the New York State Public  Service  Commission  authorized  energy
services  companies  (ESCOs)  to  compete  with traditional utilities to
supply consumers with electricity or natural gas. Since  then,  approxi-
mately 85 ESCOs have become certified to provide electricity in New York
state  and  over 100 ESCOs have become certified to provide natural gas.
The legislature further finds that  on  October  19,  2012,  the  Public
Service  Commission  instituted  a new proceeding (12-M-0476) to examine
aspects of the  residential  and  small  non-residential  retail  energy
markets in the state, during the course of which proceeding, the Depart-
ment  of  Public  Service  found  that  some large scale non-residential
customers were benefiting from competition, while some  small  non-resi-
dential  and  residential  customers were not benefiting and paying more
for energy than they typically would pay with their utility. The  legis-
lature further finds that the proceeding discovered "major weaknesses in
the  residential  and small non-residential retail energy markets due to
the lack of accurate, transparent and useful information  and  marketing
behavior  that  creates  and  too  often  relies on customer confusion."
Therefore, to protect customers, the legislature finds it  necessary  to
establish enhanced penalties to end abusive practices.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11695-03-4

              

A. 8164--A                          2

  S  2. The public service law is amended by adding a new article 4-c to
read as follows:
                               ARTICLE 4-C
                        ENERGY SERVICE COMPANIES
SECTION 89-Q. ENERGY SERVICES COMPANY MARKETING STANDARDS.
  S  89-Q.  ENERGY  SERVICES  COMPANY  MARKETING STANDARDS.   1. FOR THE
PURPOSE OF THIS SECTION:
  (A) "ENERGY SERVICES COMPANY" OR "ESCO," SHALL MEAN ANY ENTITY  ELIGI-
BLE  TO SELL ENERGY SERVICES TO END USE CUSTOMERS USING THE TRANSMISSION
OR DISTRIBUTION SYSTEM OF A UTILITY CORPORATION.
  (B) "DISTRIBUTION UTILITY" SHALL MEAN A GAS  OR  ELECTRIC  CORPORATION
OWNING, OPERATING OR MANAGING ELECTRIC OR GAS FACILITIES FOR THE PURPOSE
OF DISTRIBUTING GAS OR ELECTRICITY TO END USERS.
  (C)  "ESCO  MARKETING REPRESENTATIVE" SHALL MEAN ANY EMPLOYEE OR AGENT
OF AN ESCO THAT ENGAGES IN ANY MARKETING ACTIVITY  INTENDED  TO  ENROLL,
CONTRACT OR SELL ENERGY SERVICES TO END USE CUSTOMERS WITH SUCH ESCO.
  (D) "INDEPENDENT THIRD PARTY VERIFICATION" SHALL MEAN THE CONFIRMATION
OF  A  CUSTOMER'S  AGREEMENT  TO TAKE SERVICE FROM AN ESCO, BY AN ENTITY
THAT IS INDEPENDENT OF THE ESCO.
  (E) "ESCO MARKETING OPT-OUT REGISTRY" SHALL MEAN A LIST OF RESIDENTIAL
AND SMALL NON-RESIDENTIAL CUSTOMERS THAT DO NOT WANT TO BE CALLED BY  AN
ESCO OR ESCO MARKETING REPRESENTATIVE.
  2.  THE  COMMISSION  SHALL DIRECT EACH ENERGY SERVICES COMPANY AND ANY
ESCO MARKETING  REPRESENTATIVE  SELLING  OR  OFFERING  FOR  SALE  ENERGY
SERVICES TO RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMERS TO:
  (A)  REMOVE  A  RESIDENTIAL  OR SMALL NON-RESIDENTIAL CUSTOMER'S NAME,
TELEPHONE, AND CONTACT INFORMATION FROM ANY ESCO MARKETING DATABASE UPON
SUCH RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMER'S REQUEST;
  (B) PROVIDE  TO  A  POTENTIAL  RESIDENTIAL  OR  SMALL  NON-RESIDENTIAL
CUSTOMER: THE NAME OF THE ESCO MARKETING REPRESENTATIVE ON THE CALL, THE
NAME  OF THE ESCO ON WHOSE BEHALF THE CALL IS BEING MADE AND THE PURPOSE
OF SUCH CALL AND, UPON  REQUEST,  THE  ESCO  MARKETING  REPRESENTATIVE'S
IDENTIFICATION NUMBER;
  (C)  INDICATE THAT THE CONTRACT FOR PROVISION OF ENERGY SERVICES BY AN
ESCO WILL NOT AFFECT THE RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMER'S
EXISTING RELATIONSHIP WITH THE DISTRIBUTION UTILITY SERVICE  OTHER  THAN
THAT  SUCH  RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMER WILL NO LONGER
BE PURCHASING ELECTRICITY AND/OR NATURAL GAS FROM THE DISTRIBUTION UTIL-
ITY;
  (D)  IMMEDIATELY  TRANSFER  A  RESIDENTIAL  OR  SMALL  NON-RESIDENTIAL
CUSTOMER TO A REPRESENTATIVE WHO SPEAKS THE RESIDENTIAL OR SMALL NON-RE-
SIDENTIAL CUSTOMER'S PRIMARY LANGUAGE OR TERMINATE THE CALL;
  (E)  USE  INDEPENDENT  THIRD  PARTY  VERIFICATION,  AS APPROVED BY THE
COMMISSION, PRIOR TO ENROLLING A RESIDENTIAL  OR  SMALL  NON-RESIDENTIAL
CUSTOMER; AND
  (F)  PROHIBIT  ESCO  MARKETING  REPRESENTATIVES FROM ASSERTING THAT AN
ESCO IS ACTING ON BEHALF OF A DISTRIBUTION UTILITY.
  3. (A) THE COMMISSION  SHALL  REQUIRE  EACH  DISTRIBUTION  UTILITY  TO
ESTABLISH  AN ESCO MARKETING OPT-OUT REGISTRY. EACH DISTRIBUTION UTILITY
SHALL PROVIDE AN ANNUAL NOTICE TO ITS RESIDENTIAL AND SMALL NON-RESIDEN-
TIAL CUSTOMERS ON HOW SUCH CUSTOMERS MAY ACCESS AND ENROLL ONTO ITS ESCO
MARKETING OPT-OUT REGISTRY.
  (B) NO ESCO OR ESCO MARKETING REPRESENTATIVE SHALL  MARKET,  INCLUDING
BUT  NOT LIMITED TO TELEPHONE CALLS, TO A RESIDENTIAL OR SMALL NON-RESI-
DENTIAL CUSTOMERS THAT IS ON A  DISTRIBUTION  UTILITY'S  ESCO  MARKETING
OPT-OUT REGISTRY.

A. 8164--A                          3

  4.  (A)  THE  COMMISSION  IS  HEREBY GRANTED THE AUTHORITY TO ASSESS A
CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS AGAINST ANY  ESCO  WHEN
SUCH  ESCO  OR  ITS  ESCO  MARKETING  REPRESENTATIVES KNOWINGLY FAILS OR
NEGLECTS TO COMPLY WITH ANY PROVISION OF THIS SECTION OR ANY  REGULATION
OR  ORDER  OF THE COMMISSION IMPLEMENTING OR ENFORCING THE PROVISIONS OF
THIS SECTION. IN THE CASE OF A CONTINUING VIOLATION, THE  COMMISSION  IS
HEREBY AUTHORIZED TO DEEM EACH DAY A SEPARATE AND DISTINCT OFFENSE.
  (B)  WHENEVER THE COMMISSION HAS REASON TO BELIEVE THAT AN ESCO SHOULD
BE SUBJECT TO IMPOSITION OF A CIVIL PENALTY OR PENALTIES AS SET FORTH IN
THIS SUBDIVISION, THE COMMISSION SHALL NOTIFY  SUCH  ESCO.  SUCH  NOTICE
SHALL  INCLUDE,  BUT  SHALL  NOT  BE LIMITED TO (I) THE DATE AND A BRIEF
DESCRIPTION OF THE FACTS AND NATURE OF EACH ACT OR FAILURE  TO  ACT  FOR
WHICH SUCH PENALTY IS PROPOSED; (II) THE AMOUNT OF EACH PENALTY THAT THE
COMMISSION PROPOSES TO ASSESS; AND (III) THE OPTION TO REQUEST A HEARING
TO  DEMONSTRATE  WHY  THE  PROPOSED  PENALTY  OR PENALTIES SHOULD NOT BE
ASSESSED AGAINST SUCH ESCO.
  5. NOTHING IN THIS SECTION SHALL BE DEEMED TO LIMIT ANY  AUTHORITY  OF
THE  COMMISSION  OR THE LONG ISLAND POWER AUTHORITY TO LIMIT, SUSPEND OR
REVOKE THE ELIGIBILITY OF AN ENERGY SERVICES COMPANY OR  ESCO  MARKETING
REPRESENTATIVE  TO  SELL, OFFER, OR MARKET ENERGY SERVICES FOR VIOLATION
OF ANY PROVISION OF LAW, RULE, REGULATION OR POLICY ENFORCEABLE  BY  THE
COMMISSION OR THE LONG ISLAND POWER AUTHORITY.
  6. NOTHING IN THIS SECTION SHALL LIMIT THE AUTHORITY OF THE COMMISSION
OR  THE  LONG  ISLAND POWER AUTHORITY TO ADOPT ADDITIONAL ORDERS, GUIDE-
LINES, PRACTICES, POLICIES, RULES OR REGULATIONS RELATING TO THE MARKET-
ING PRACTICES OF ENERGY SERVICES COMPANIES TO RESIDENTIAL, SMALL NON-RE-
SIDENTIAL 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.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law; provided however that the public  service  commission
is  authorized  and  directed to take any and all actions, including but
not limited to the promulgation of any  orders,  guidelines,  practices,
policies, rules and regulations necessary to implement the provisions of
this act on or before such date.