This bill has been amended

Bill S4526-2015

Relates to energy services company telemarketing standards

Relates to energy services company telemarketing standards; enacts provisions restricting telemarketing for customers who enroll in an opt-out registry.

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  • Mar 26, 2015: REFERRED TO ENERGY AND TELECOMMUNICATIONS

Memo

BILL NUMBER:S4526

TITLE OF BILL: An act to amend the public service law, in relation to telemarketing practices of energy services companies

PURPOSE:

To enforce and create telemarketing standards for energy services companies, establish civil penalties for violating such standards.

SUMMARY OF PROVISIONS:

*Section one of the bill creates definitions for various terms used in the bill.

*Section two of the bill:

*Establishes telemarketing practices and requires an energy services company (ESCO) and an ESCO marketing representatives to:

*remove a customer from an ESCO marketing database upon request; *require a marketing representative to provide their name, the name of the ESCO on whose behalf they are calling for, and the purpose of the call; * transfer a customer to a representative who speaks the customer's primary language or terminate the call; *use independent third party verification, as approved by the Public Service Commission, to enroll a customer; and *prohibit ESCO marketing representatives from asserting that an ESCO is acting on behalf of a utility.

*Require ESCOs and contractors to comply with the "Do-Not-Call" Registry and basic telemarketing standards.

*Authorizes the Public Service Commission to access a civil penalty which would not exceed one thousand dollars per violation against any ESCO that knowingly fails or neglects to comply with the provisions of this section. This section also requires the Public Service Commission to provide notice to an ESCO, when the Commission believes an ESCO has violated a provision of this section.

*Deems that nothing in this act will limit the Public Service Commission or Long Island Power Authority from regulating ESCOs as they deem necessary and appropriate.

*Section three of the bill is the effective date.

JUSTIFICATION:

On October 18, 2012, the Public Service Commission began a proceeding to assess certain aspects of the residential and small nonresidential retail energy or energy service companies markets in New York (Case 12-M-0476). Out of the proceeding, serious concerns about the telemarketing behavior of energy services companies (ESCOs) have emerged. In the assessment of the Commission's staff, some ESCOs are engaging in marketing behavior that creates and relies on customer confusion. This bill would explicitly subject ESCOs to telemarketing

standards that would protect customers from predatory marketing behavior. Most importantly, this bill would empower the Commission to issue civil penalties against ESCOs that repeatedly refuse to comply with telemarketing standards. By requiring ESCO to comply with the "Do-Not-Call" Registry and telemarketing standards under Public Service Law, the Commission would be allowed to issue a civil penalty when ESCO disregards the "Do-NotCall" Registry. The civil penalty created in this bill closes an important gap in the regulation of ESCOs as the Commission currently cannot issue any civil penalties against ESCOs for any violations.

LEGISLATIVE HISTORY:

New.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect 90 days after enactment into law and immediately upon enactment the Public Service Commission is authorized to establish any regulations needed to implement this act.


Text

STATE OF NEW YORK ________________________________________________________________________ 4526 2015-2016 Regular Sessions IN SENATE March 26, 2015 ___________
Introduced by Sen. GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Energy and Telecommuni- cations AN ACT to amend the public service law, in relation to telemarketing practices of energy services companies 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 article 4-C to read as follows: ARTICLE 4-C ENERGY SERVICE COMPANIES SECTION 89-Q. ENERGY SERVICES COMPANY TELEMARKETING STANDARDS. S 89-Q. ENERGY SERVICES COMPANY TELEMARKETING 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 TELEMARKETING REPRESENTATIVE" SHALL MEAN ANY EMPLOYEE OR AGENT OF AN ESCO THAT ENGAGES IN ANY TELEMARKETING 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. 2. (A) EACH ENERGY SERVICES COMPANY ENGAGING IN TELEMARKETING SHALL BE SUBJECT TO AND COMPLY WITH SECTIONS THREE HUNDRED NINETY-NINE-PP AND THREE HUNDRED NINETY-NINE-Z OF THE GENERAL BUSINESS LAW, INCLUDING BUT NOT LIMITED TO THE ADHERENCE TO THE NATIONAL "DO-NOT-CALL" REGISTRY
ESTABLISHED, MANAGED AND MAINTAINED BY THE FEDERAL TRADE COMMISSION PURSUANT TO 16 CFR SECTION 310.4(B)(1)(III) AS AMENDED FROM TIME TO TIME. (B) EACH ENERGY SERVICES COMPANY SHALL REQUIRE ANY CONTRACT FOR TELE- MARKETING SERVICES TO REQUIRE THE TELEMARKETER TO HAVE A CERTIFICATE OF REGISTRATION FROM THE SECRETARY OF STATE AND SUCH TELEMARKETER SHALL AGREE TO BE SUBJECT TO AND COMPLY WITH SECTIONS THREE HUNDRED NINETY-NINE-PP AND THREE HUNDRED NINETY-NINE-Z OF THE GENERAL BUSINESS LAW, INCLUDING BUT NOT LIMITED TO THE ADHERENCE TO THE NATIONAL "DO-NOT-CALL" REGISTRY ESTABLISHED, MANAGED AND MAINTAINED BY THE FEDER- AL TRADE COMMISSION PURSUANT TO 16 CFR SECTION 310.4(B)(1)(III) AS AMENDED FROM TIME TO TIME. 3. THE COMMISSION SHALL DIRECT EACH ENERGY SERVICES COMPANY AND ANY ESCO TELEMARKETING 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 TELEMARKETING 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 TELEMARKETING 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 TELEMARKETING REPRESEN- TATIVE'S IDENTIFICATION NUMBER; (C) 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; (D) USE INDEPENDENT THIRD PARTY VERIFICATION, AS APPROVED BY THE COMMISSION, PRIOR TO ENROLLING A RESIDENTIAL OR SMALL NON-RESIDENTIAL CUSTOMER; AND (E) PROHIBIT ESCO TELEMARKETING REPRESENTATIVES FROM ASSERTING THAT AN ESCO IS ACTING ON BEHALF OF A DISTRIBUTION UTILITY. 4. (A) THE COMMISSION IS HEREBY GRANTED THE AUTHORITY, SUBJECT TO PARAGRAPH (B) OF THIS SUBDIVISION, TO ASSESS A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS AGAINST ANY ESCO WHEN SUCH ESCO OR ITS ESCO TELEMARKETING REPRESENTATIVES KNOWINGLY FAILS OR NEGLECTS TO COMPLY WITH ANY PROVISION OF THIS SECTION OR ANY REGULATION OR ORDER OF THE COMMIS- SION 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 TELEMARKET- ING REPRESENTATIVE TO SELL, OFFER, OR MARKET ENERGY SERVICES FOR VIOLATION OF ANY PROVISION OF LAW, RULE, REGULATION OR POLICY ENFORCEA- BLE 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 2. 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 effective date.

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