§ 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 h
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