S T A T E   O F   N E W   Y O R K
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                                  7811

                            I N  S E N A T E

                              June 11, 2014
                               ___________

Introduced  by  Sen.  SAVINO -- 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 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 public service commission authorized energy services companies
(ESCOs)  to  compete with traditional utilities to supply consumers with
electricity or natural gas. Since  then,  approximately  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  resi-
dential  and  small  non-residential retail energy markets in the state,
during the course of which proceeding, the department of public  service
found  that  some  large scale non-residential customers were benefiting
from competition,  while  some  small  non-residential  and  residential
customers were not benefiting and paying more for energy than they typi-
cally  would  pay with their utility. The legislature further finds that
the proceeding discovered "major weaknesses in the residential and small
non-residential retail energy markets due to the lack of accurate, tran-
sparent and useful information and marketing behavior that  creates  and
too  often relies on customer confusion."  Therefore, to protect custom-
ers, the legislature finds it necessary to establish enhanced  penalties
to end abusive practices.
  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:

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

                                                           LBD11695-06-4

S. 7811                             2

  (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.
  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
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

S. 7811                             3

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 effective date.