Bill Text: NY A04412 | 2011-2012 | General Assembly | Introduced
Bill Title: Grants the public service commission the authority to regulate and certify providers, distributors and retailers of prepaid telephone calling services.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2012-09-04 - enacting clause stricken [A04412 Detail]
Download: New_York-2011-A04412-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 4412 2011-2012 Regular Sessions I N A S S E M B L Y February 3, 2011 ___________ Introduced by M. of A. P. RIVERA -- Multi-Sponsored by -- M. of A. JAFFEE -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the public service law, the abandoned property law and the general business law, in relation to prepaid telephone calling cards and services; and to repeal section 92-f of the public service law relating to prepaid telephone calling card consumer protections THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Section 92-f of the public service law is REPEALED. 2 S 2. The public service law is amended by adding a new article 5-A to 3 read as follows: 4 ARTICLE 5-A 5 PREPAID TELEPHONE CALLING CARDS 6 SECTION 103. DEFINITIONS. 7 103-A. CERTIFICATION. 8 103-B. DISCLOSURE REQUIREMENTS. 9 103-C. CUSTOMER SERVICE. 10 103-D. ENFORCEMENT. 11 S 103. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, UNLESS THE 12 CONTEXT OR SUBJECT MATTER OTHERWISE REQUIRES, THE FOLLOWING TERMS SHALL 13 HAVE THE FOLLOWING MEANINGS: 14 1. "ADVERTISEMENT" MEANS THE ATTEMPT, DIRECTLY OR INDIRECTLY, BY 15 PUBLICATION, DISSEMINATION, SOLICITATION, ENDORSEMENT OR CIRCULATION, OR 16 IN ANY OTHER WAY, TO INDUCE DIRECTLY OR INDIRECTLY ANY PERSON TO 17 PURCHASE A PREPAID CARD OR PREPAID SERVICE, WHETHER APPEARING IN ANY 18 NEWSPAPER, MAGAZINE, PERIODICAL, CIRCULAR, IN-STORE OR OUT-OF-STORE 19 SIGN, OR OTHER WRITTEN MATTER PLACED BEFORE THE CONSUMING PUBLIC, OR IN 20 ANY RADIO BROADCAST, TELEVISION BROADCAST, ELECTRONIC MEDIUM, OR DELIV- 21 ERED TO OR THROUGH ANY COMPUTER. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00022-01-1 A. 4412 2 1 2. "PERSON" MEANS AND INCLUDES ANY CORPORATION, COMPANY, ASSOCIATION, 2 FIRM, ENTITY, PARTNERSHIP OR INDIVIDUAL. 3 3. "PREPAID CARD" MEANS ANY OBJECT OR RIGHT OF USE PURCHASED FOR A SUM 4 CERTAIN THAT ENABLES A CONSUMER TO USE A PREPAID SERVICE. SUCH RIGHTS OF 5 USE MAY BE EMBODIED ON A CARD OR OTHER PHYSICAL OBJECT OR MAY BE 6 PURCHASED BY AN ELECTRONIC OR TELEPHONIC MEANS WITHOUT A PHYSICAL 7 OBJECT. THE TERM "PREPAID CARD" SHALL NOT INCLUDE: 8 (A) PREPAID CARDS THAT ARE PROVIDED FOR FREE OR AT NO ADDITIONAL 9 CHARGE AS A PROMOTIONAL ITEM ACCOMPANYING ANOTHER PRODUCT OR SERVICE 10 PURCHASED BY A CONSUMER; 11 (B) PREPAID CARDS PROVIDED PURSUANT TO AN AWARDS, LOYALTY OR REBATE 12 PROGRAM WITHOUT ANY SEPARATE MONETARY CONSIDERATION BEING GIVEN BY THE 13 CONSUMER FOR THE PREPAID CARD; OR 14 (C) AN OBJECT OR RIGHT OF USE THAT PROVIDES ACCESS TO A WIRELESS TELE- 15 COMMUNICATIONS SERVICE (WHETHER PRE OR POST PAID). 16 4. "PREPAID DISTRIBUTOR" MEANS (A) ANY PERSON THAT PURCHASES OR 17 RECEIVES PREPAID CARDS OR PREPAID SERVICE FROM A PREPAID PROVIDER, A 18 TELECOMMUNICATIONS CARRIER OR OTHER PREPAID DISTRIBUTOR, AND SELLS OR 19 DISTRIBUTES THE PREPAID CARDS AND/OR PREPAID SERVICE TO ONE OR MORE 20 PREPAID DISTRIBUTORS OR TO ONE OR MORE PREPAID RETAILERS; AND (B) ANY 21 PERSON THAT OTHERWISE ACTIVELY ENGAGES IN THE PROMOTION, ADVERTISING OR 22 DISSEMINATION OF PREPAID CARDS OR PREPAID SERVICE AND IS NOT A PREPAID 23 PROVIDER. SUCH TERM SHALL NOT INCLUDE ANY PREPAID RETAILER ENGAGED 24 EXCLUSIVELY IN POINT-OF-SALE TRANSACTIONS WITH CONSUMERS. 25 5. "PREPAID PROVIDER" MEANS ANY PERSON THAT IS ENGAGED IN PROVIDING 26 PREPAID SERVICE TO THE PUBLIC USING ITS OWN, A RESOLD TELECOMMUNICATIONS 27 NETWORK, OR VOICE OVER INTERNET TECHNOLOGY. 28 6. "PREPAID RETAILER" MEANS ANY PERSON THAT SELLS OR OFFERS TO SELL 29 PREPAID CARDS OR PREPAID SERVICE DIRECTLY TO ONE OR MORE CONSUMERS. 30 7. "PREPAID SERVICE" MEANS ANY TELECOMMUNICATIONS SERVICE THAT (A) 31 MUST BE PAID FOR IN ADVANCE BY A CONSUMER AND (B) ENABLES THE CONSUMER 32 TO ORIGINATE TELEPHONE CALLS BY USING AN ACCESS NUMBER AND AN AUTHORI- 33 ZATION CODE, WHETHER MANUALLY OR ELECTRONICALLY DIALED. THE TERM 34 "PREPAID SERVICE" SHALL NOT INCLUDE ANY SERVICE THAT PROVIDES ACCESS TO 35 A WIRELESS TELECOMMUNICATIONS SERVICE (WHETHER PRE OR POST PAID). 36 8. "PROVIDER CERTIFICATE" MEANS A PROVIDER CERTIFICATE ISSUED BY THE 37 COMMISSION TO A PREPAID PROVIDER PURSUANT TO SUBDIVISION ONE OF SECTION 38 ONE HUNDRED THREE-A OF THIS ARTICLE. 39 S 103-A. CERTIFICATION. 1. PREPAID PROVIDERS. (A) GENERAL. IT SHALL BE 40 UNLAWFUL FOR ANY PREPAID PROVIDER TO OFFER, PROVIDE OR SEEK TO OFFER OR 41 PROVIDE PREPAID SERVICE IN THIS STATE UNLESS THE PREPAID PROVIDER HAS 42 APPLIED FOR AND RECEIVED A PROVIDER CERTIFICATE FROM THE COMMISSION. 43 (B) APPLICATION. APPLICATION FOR A PROVIDER CERTIFICATE SHALL BE ON A 44 FORM PROVIDED BY THE COMMISSION IN ACCORDANCE WITH THIS SUBDIVISION AND 45 SHALL BE ACCOMPANIED BY A FEE IN THE AMOUNT OF FIVE HUNDRED DOLLARS. THE 46 APPLICATION FOR A PROVIDER CERTIFICATE SHALL CONTAIN ANY INFORMATION THE 47 COMMISSION MAY REQUIRE, BUT SHALL INCLUDE AT A MINIMUM: 48 (I) THE NAME, ADDRESS AND TITLE OF EACH OFFICER, DIRECTOR, EXECUTIVE 49 AND PARTNER OF THE PREPAID PROVIDER; 50 (II) A DESCRIPTION OF THE PREPAID SERVICES AND PREPAID CARDS THAT THE 51 PREPAID PROVIDER INTENDS TO OFFER; 52 (III) THE PREPAID PROVIDER'S TWENTY-FOUR HOUR CUSTOMER SERVICE TELE- 53 PHONE NUMBER FOR CONSUMERS WITHIN THIS STATE; AND 54 (IV) THE NAME AND ADDRESS OF THE PREPAID PROVIDER'S REGISTERED AGENT 55 FOR SERVICE OF PROCESS IN THIS STATE. A. 4412 3 1 (C) APPROVAL BY COMMISSION. THE COMMISSION SHALL APPROVE AN APPLICA- 2 TION FOR A PROVIDER CERTIFICATE UPON A SHOWING BY THE APPLICANT AND A 3 FINDING BY THE COMMISSION THAT THE APPLICANT POSSESSES SUFFICIENT TECH- 4 NICAL, FINANCIAL AND MANAGERIAL RESOURCES AND ABILITIES TO PROVIDE 5 PREPAID SERVICE. THE COMMISSION SHALL APPROVE AN APPLICATION FOR A 6 PROVIDER CERTIFICATE UPON A SHOWING BY AN APPLICANT THAT THE COMMISSION 7 HAS ISSUED AN APPROPRIATE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSI- 8 TY TO THE APPLICANT OR THE TELECOMMUNICATIONS SERVICE CARRIER WHOSE 9 SERVICE THE APPLICANT IS SEEKING TO RESELL, PROVIDED THAT THE APPLICANT 10 OR TELECOMMUNICATIONS SERVICE CARRIER (AS THE CASE MAY BE) REMAINS IN 11 GOOD STANDING WITH THE COMMISSION. THE COMMISSION SHALL ALSO REQUIRE AS 12 A CONDITION OF APPROVAL THE PROCUREMENT OF A SURETY BOND, OR OTHER 13 AUTHORIZED SECURITY, FROM THE PREPAID PROVIDER IN THE MINIMUM AMOUNT OF 14 FIFTY THOUSAND DOLLARS. THE COMMISSION MAY REQUIRE A LARGER SURETY BOND 15 IF IT DETERMINES THAT A PREPAID PROVIDER HAS ENGAGED IN A PATTERN OF 16 CONDUCT RESULTING IN BONA FIDE CONSUMER COMPLAINTS OF MISCONDUCT AND 17 THAT SUCH INCREASED BOND IS NECESSARY FOR THE PROTECTION OF CONSUMERS. 18 EACH APPROVED PREPAID PROVIDER SHALL RECEIVE A CERTIFICATE NUMBER FROM 19 THE COMMISSION. 20 (D) POSTING BY COMMISSION. THE COMMISSION SHALL POST ON THE COMMIS- 21 SION'S WEBSITE, ON A LINK SOLELY DEDICATED TO PREPAID PROVIDERS, A LIST 22 THAT CONTAINS THE FULL LEGAL NAME OF EACH PREPAID PROVIDER THAT HAS 23 RECEIVED A PROVIDER CERTIFICATE AND THE CUSTOMER SERVICE NUMBER FOR EACH 24 SUCH PREPAID PROVIDER. 25 (E) NOTIFICATION TO PREPAID DISTRIBUTORS. PREPAID PROVIDERS SHALL 26 SUPPLY PROOF OF THEIR PROVIDER CERTIFICATE TO EACH PREPAID DISTRIBUTOR 27 IN THIS STATE TO WHOM THE PREPAID PROVIDER PROVIDES PREPAID SERVICE 28 AND/OR PREPAID CARDS. 29 2. PREPAID DISTRIBUTORS. (A) GENERAL. IT SHALL BE UNLAWFUL FOR ANY 30 PREPAID DISTRIBUTOR TO DISTRIBUTE, SELL OR RESELL PREPAID CARDS AND/OR 31 PREPAID SERVICE IN THIS STATE UNLESS IT IS REGISTERED WITH THE COMMIS- 32 SION IN ACCORDANCE WITH THE PROVISIONS OF THIS SUBDIVISION. 33 (B) APPLICATION. APPLICATION FOR A PREPAID DISTRIBUTOR SHALL BE ON A 34 FORM PROVIDED BY THE COMMISSION IN ACCORDANCE WITH THIS SUBDIVISION AND 35 SHALL BE ACCOMPANIED BY A FEE IN THE AMOUNT OF THREE HUNDRED DOLLARS. 36 THE APPLICATION SHALL CONTAIN ANY INFORMATION THE COMMISSION MAY 37 REQUIRE, BUT SHALL INCLUDE AT A MINIMUM: 38 (I) THE NAME, ADDRESS AND TITLE OF EACH OFFICER, DIRECTOR, EXECUTIVE 39 AND PARTNER OF THE PREPAID DISTRIBUTOR; 40 (II) A DESCRIPTION OF THE PREPAID SERVICES AND PREPAID CARDS THAT THE 41 PREPAID DISTRIBUTOR INTENDS TO DISTRIBUTE, SELL, RESELL OR OFFER; AND 42 (III) THE NAME AND ADDRESS OF THE PREPAID DISTRIBUTOR'S REGISTERED 43 AGENT FOR SERVICE OF PROCESS IN THIS STATE. 44 (C) APPROVAL BY COMMISSION. THE COMMISSION SHALL APPROVE AN APPLICA- 45 TION OF A PREPAID DISTRIBUTOR UPON A SHOWING BY THE APPLICANT AND A 46 FINDING BY THE COMMISSION THAT THE APPLICANT POSSESSES SUFFICIENT TECH- 47 NICAL, FINANCIAL, AND MANAGERIAL RESOURCES AND ABILITIES TO DISTRIBUTE 48 PREPAID CARDS AND/OR PREPAID SERVICE. THE COMMISSION SHALL ALSO REQUIRE 49 AS A CONDITION OF APPROVAL THE PROCUREMENT OF A SURETY BOND, OR OTHER 50 AUTHORIZED SECURITY, FROM THE PREPAID DISTRIBUTOR IN THE MINIMUM AMOUNT 51 OF TEN THOUSAND DOLLARS. IF THE ANNUAL SALES OF THE PREPAID DISTRIBUTOR 52 IN THIS STATE EXCEED ONE MILLION DOLLARS, THE MINIMUM AMOUNT OF THE 53 SURETY BOND, OR OTHER AUTHORIZED SECURITY, SHALL BE TWENTY-FIVE THOUSAND 54 DOLLARS. EACH APPROVED PREPAID DISTRIBUTOR SHALL RECEIVE A REGISTRATION 55 NUMBER FROM THE COMMISSION. A. 4412 4 1 (D) NOTIFICATION. PREPAID DISTRIBUTORS SHALL SUPPLY PROOF OF THEIR 2 REGISTRATION WITH THE COMMISSION TO EACH PREPAID RETAILER OR OTHER 3 PREPAID DISTRIBUTOR IN THIS STATE TO WHOM THE PREPAID DISTRIBUTOR SELLS, 4 PROVIDES OR DISTRIBUTES PREPAID CARDS. PREPAID DISTRIBUTORS SHALL 5 FORWARD THE PROOF SUPPLIED BY EACH PREPAID PROVIDER OF SUCH PREPAID 6 PROVIDER'S CERTIFICATION WITH THE COMMISSION TO EACH PREPAID RETAILER OR 7 OTHER PREPAID DISTRIBUTOR IN THIS STATE TO WHOM THE PREPAID DISTRIBUTOR 8 SELLS, PROVIDES OR DISTRIBUTES PREPAID CARDS. 9 3. PREPAID RETAILERS. (A) IT SHALL BE UNLAWFUL FOR ANY PREPAID RETAIL- 10 ER TO SELL OR OFFER TO SELL PREPAID CARDS OR PREPAID SERVICE TO ANY 11 CONSUMER IN THIS STATE UNLESS THE PREPAID RETAILER HAS RECEIVED PROOF OF 12 THE PROVIDER CERTIFICATE FOR EACH APPLICABLE PREPAID CARD AND PREPAID 13 SERVICE OFFERED BY THE PREPAID RETAILER. 14 (B) IT SHALL BE UNLAWFUL FOR ANY PREPAID RETAILER TO PURCHASE OR OFFER 15 TO PURCHASE PREPAID CARDS OR PREPAID SERVICE FROM ANY PREPAID DISTRIBU- 16 TOR UNLESS THE PREPAID RETAILER HAS RECEIVED PROOF OF THE PREPAID 17 DISTRIBUTOR'S REGISTRATION WITH THE COMMISSION. 18 (C) PREPAID RETAILERS SHALL NOT SELL OR OFFER FOR SALE ANY PREPAID 19 CARD THAT THE PREPAID RETAILER KNOWS PROVIDES FEWER MINUTES THAN THE 20 NUMBER OF MINUTES PROMOTED OR ADVERTISED FOR SUCH PREPAID CARD, INCLUD- 21 ING THE NUMBER OF MINUTES LISTED ON THE PREPAID CARD, ANY ADVERTISING OR 22 POINT-OF-SALE MATERIAL RELATED TO THE PREPAID CARD OR ANY VOICE PROMPT 23 ANNOUNCING THE NUMBER OF MINUTES AVAILABLE FOR A CALL WITH THE PREPAID 24 CARD. 25 (D) PREPAID RETAILERS SHALL POST THE COMMISSION'S TOLL-FREE HOTLINE 26 TELEPHONE NUMBER IN A CONSPICUOUS LOCATION WITHIN EACH STORE. 27 4. AMENDMENTS. EACH PREPAID PROVIDER AND PREPAID DISTRIBUTOR SHALL 28 FILE AN AMENDED APPLICATION WITHIN TWENTY DAYS AFTER ANY CHANGE IN THE 29 INFORMATION CONTAINED IN THEIR APPLICATION. NO FEE SHALL BE REQUIRED FOR 30 THE FILING OF AN AMENDMENT. 31 5. REVOCATION. THE COMMISSION MAY, IN ITS DISCRETION, CANCEL, REVOKE 32 OR SUSPEND THE CERTIFICATE AND/OR REGISTRATION OF ANY PREPAID PROVIDER 33 OR PREPAID DISTRIBUTOR UPON ANY OF THE FOLLOWING GROUNDS: 34 (A) THE PREPAID PROVIDER OR PREPAID DISTRIBUTOR DOES NOT PROVIDE OR 35 UPDATE THE INFORMATION REQUIRED BY THIS SECTION; 36 (B) THE PREPAID PROVIDER OR PREPAID DISTRIBUTOR FAILS TO PROVIDE OR 37 MAINTAIN THE REQUIRED SURETY BOND OR OTHER AUTHORIZED SECURITY; 38 (C) THE PREPAID PROVIDER OR PREPAID DISTRIBUTOR VIOLATES ANY ORDER, 39 DECISION, RULE, REGULATION OR REQUIREMENT ESTABLISHED OR ADOPTED BY THE 40 COMMISSION PURSUANT TO THIS ARTICLE; 41 (D) THE PREPAID PROVIDER OR PREPAID DISTRIBUTOR FILES A FALSE STATE- 42 MENT WITH THE COMMISSION; OR 43 (E) THE PREPAID PROVIDER OR PREPAID DISTRIBUTOR VIOLATES ANY PROVISION 44 OF LAW. 45 6. OTHER REGISTRATIONS. THE CERTIFICATION AND REGISTRATION REQUIRE- 46 MENTS OF THIS SECTION SHALL BE IN ADDITION TO, AND DO NOT OBVIATE, ANY 47 CERTIFICATION, AUTHORIZATION, REGISTRATION OR OTHER REGULATORY REQUIRE- 48 MENTS IMPOSED ON INTRASTATE TELECOMMUNICATIONS CARRIERS BY THE STATE. 49 S 103-B. DISCLOSURE REQUIREMENTS. 1. PREPAID CARDS. PREPAID PROVIDERS 50 AND PREPAID DISTRIBUTORS SHALL CLEARLY AND CONSPICUOUSLY DISCLOSE THE 51 FOLLOWING INFORMATION ON ALL PREPAID CARDS: 52 (A) THE NAME OF THE PREPAID PROVIDER AS CERTIFICATED BY THE COMMIS- 53 SION; 54 (B) THE PREPAID PROVIDER'S TWENTY-FOUR-HOUR CUSTOMER SERVICE TELEPHONE 55 NUMBER; 56 (C) AN ACCESS NUMBER, IF REQUIRED TO ACCESS THE PREPAID SERVICE; A. 4412 5 1 (D) AN AUTHORIZATION CODE, IF REQUIRED TO ACCESS THE PREPAID SERVICE; 2 AND 3 (E) ANY EXPIRATION DATE OR POLICY. 4 2. PREPAID CARDS OR PACKAGING. PREPAID PROVIDERS AND PREPAID DISTRIBU- 5 TORS SHALL CLEARLY AND CONSPICUOUSLY DISCLOSE ALL MATERIAL TERMS AND 6 CONDITIONS FOR USE OF A PREPAID CARD OR PREPAID SERVICE EITHER ON THE 7 PREPAID CARD OR ITS PACKAGING, WHICH TERMS AND CONDITIONS SHALL BE VISI- 8 BLE TO THE CONSUMER PRIOR TO PURCHASE AT THE POINT OF SALE, INCLUDING 9 WITHOUT LIMITATION THE FOLLOWING ITEMS: 10 (A) THE MAXIMUM AMOUNT AND FREQUENCY OF ANY CHARGE, FEE, TAX OR 11 SURCHARGE (EXCLUDING THE APPLICABLE PER MINUTE RATE) THAT MAY BE APPLI- 12 CABLE TO THE USE OF THE PREPAID CARD OR PREPAID SERVICE FOR CALLS ORIGI- 13 NATING WITHIN THE UNITED STATES; 14 (B) NOTICE THAT ADDITIONAL OR DIFFERENT PER MINUTE RATES, CHARGES, 15 FEES, TAXES OR SURCHARGES MAY APPLY TO USE OF THE PREPAID CARD OR 16 PREPAID SERVICE FOR CALLS ORIGINATING OUTSIDE THE UNITED STATES AND/OR 17 FOR CALLS TO INTERNATIONAL CELLULAR AND WIRELESS TELEPHONE NUMBERS; 18 (C) NOTICE THAT PER MINUTE RATES MAY BE HIGHER FOR CALLS MADE VIA 19 TOLL-FREE ACCESS NUMBERS; 20 (D) THE VALUE OF THE PREPAID CARD OR PREPAID SERVICE, IN DOLLARS OR 21 MINUTES; 22 (E) ANY MINIMUM CHARGE PER CALL; AND 23 (F) ANY APPLICABLE POLICIES RELATING TO REFUND, RECHARGE, DECREMENT 24 AND EXPIRATION. 25 3. POINT-OF-SALE MATERIALS (OTHER THAN PREPAID CARDS AND PACKAGING). 26 PREPAID PROVIDERS AND PREPAID DISTRIBUTORS SHALL CLEARLY AND CONSPICU- 27 OUSLY DISCLOSE THE INFORMATION REQUIRED BY SUBDIVISIONS ONE AND TWO OF 28 THIS SECTION ON ALL POINT-OF-SALE MATERIALS (WHICH TERM SHALL NOT 29 INCLUDE THE PREPAID CARDS THEMSELVES AND THEIR PACKAGING) REGARDING A 30 PREPAID SERVICE. ALL POINT-OF-SALE MATERIALS (WHICH TERM SHALL NOT 31 INCLUDE THE PREPAID CARDS THEMSELVES AND THEIR PACKAGING) REGARDING A 32 PREPAID SERVICE SHALL CLEARLY AND CONSPICUOUSLY DISPLAY THE COMMISSION'S 33 TOLL-FREE HOTLINE TELEPHONE NUMBER. 34 4. ADVERTISEMENTS (OTHER THAN POINT-OF-SALE MATERIALS). PREPAID 35 PROVIDERS AND PREPAID DISTRIBUTORS SHALL CLEARLY AND CONSPICUOUSLY 36 DISCLOSE THE FOLLOWING INFORMATION ON ALL ADVERTISEMENTS FOR A PREPAID 37 CARD OR PREPAID SERVICE (OTHER THAN POINT-OF-SALE MATERIALS): 38 (A) THE NAME OF THE PREPAID PROVIDER AS CERTIFICATED BY THE COMMIS- 39 SION; 40 (B) THE PREPAID PROVIDER'S TWENTY-FOUR-HOUR CUSTOMER SERVICE TELEPHONE 41 NUMBER; AND 42 (C) ANY EXPIRATION DATE OR POLICY. 43 5. ADVERTISEMENTS OF MINUTES AND/OR RATES. ALL MINUTES AND/OR RATES 44 PROMOTED OR ADVERTISED ON A PREPAID CARD, ANY POINT-OF-SALE MATERIAL 45 RELATING TO THAT PREPAID CARD, ANY ADVERTISEMENT REGARDING A PREPAID 46 SERVICE, OR OTHERWISE RELATING TO ANY PREPAID SERVICE, SHALL BE AVAIL- 47 ABLE AND ACHIEVABLE BY THE CONSUMER, AND THERE SHALL BE NO LIMITATIONS 48 ON THE PERIOD OF TIME FOR WHICH THE PROMOTED OR ADVERTISED MINUTES 49 AND/OR RATES WILL BE AVAILABLE TO THE CONSUMER UNLESS THOSE LIMITATIONS 50 ARE CLEARLY AND CONSPICUOUSLY DISCLOSED IN THE SAME LOCATION WHERE THE 51 MINUTES AND/OR RATES ARE LISTED. 52 6. VOICE PROMPTS. ALL MINUTES ANNOUNCED ON ANY VOICE PROMPT GIVEN TO A 53 CONSUMER AT THE TIME THE CONSUMER PLACES A CALL WITH A PREPAID SERVICE 54 SHALL BE IMMEDIATELY AVAILABLE AND ACHIEVABLE BY THE CONSUMER ON THAT 55 CALL. ALL PREPAID PROVIDERS SHALL GIVE A VOICE PROMPT TO A CONSUMER AT 56 THE TIME THE CONSUMER PLACES A CALL WITH A PREPAID SERVICE THAT A. 4412 6 1 ANNOUNCES THE NUMBER OF MINUTES AVAILABLE FOR THAT CALL, WHICH NUMBER OF 2 MINUTES SHALL BE INCLUSIVE OF THE APPLICABLE PER MINUTE RATE AND ALL 3 APPLICABLE CHARGES, FEES, TAXES OR SURCHARGES. 4 7. PERMITTED CHARGES. A PREPAID PROVIDER SHALL NOT CHARGE, APPLY OR 5 DEDUCT FROM A PREPAID CARD'S BALANCE ANY CHARGES, FEES, TAXES, 6 SURCHARGES OR OTHER AMOUNTS FOR USE OF THE PREPAID SERVICE EXCEPT: 7 (A) THE PER MINUTE RATE FOR EACH PARTICULAR DESTINATION CALLED BY THE 8 CONSUMER; 9 (B) CHARGES, FEES, TAXES AND SURCHARGES THAT ARE PROPERLY DISCLOSED 10 PURSUANT TO THIS SECTION; AND 11 (C) ANY PER MINUTE RATE, CHARGE, FEE, TAX OR SURCHARGE PERMITTED 12 PURSUANT TO PARAGRAPHS (B) AND (C) OF SUBDIVISION TWO OF THIS SECTION. A 13 CONSUMER SHALL NOT BE CHARGED FOR ANY BUSY SIGNAL OR UNANSWERED CALL. A 14 PREPAID PROVIDER SHALL NOT IMPOSE ANY FEE OR SURCHARGE THAT IS NOT 15 DISCLOSED AS REQUIRED BY THIS SECTION OR THAT EXCEEDS THE AMOUNT 16 DISCLOSED. THE AMOUNT OF ANY CHARGE, FEE, TAX OR SURCHARGE THAT IS 17 IMPOSED, ASSESSED OR DEDUCTED FROM A PREPAID CARD'S VALUE OR BALANCE 18 SHALL BE EXPRESSED AND DISCLOSED IN THE SAME FORMAT, EITHER DOLLARS OR 19 MINUTES, AS THE VALUE OF THE PREPAID CARD. 20 8. FOREIGN LANGUAGE. IF A PREPAID CARD OR ANY POINT-OF-SALE MATERIAL 21 FOR A PREPAID CARD OR PREPAID SERVICE IS PREDOMINANTLY WRITTEN IN A 22 LANGUAGE OTHER THAN ENGLISH, THEN THE DISCLOSURES REQUIRED BY THIS 23 SECTION SHALL BE DISCLOSED IN THAT OTHER LANGUAGE ON THE APPLICABLE 24 PREPAID CARD OR POINT-OF-SALE MATERIAL. 25 9. PAYPHONE SURCHARGE. A PREPAID PROVIDER MAY PROVIDE A VOICE PROMPT 26 NOTIFICATION OF ANY APPLICABLE PAYPHONE SURCHARGE FOR USE OF A PREPAID 27 SERVICE FROM A PAYPHONE IN LIEU OF PROVIDING NOTICE OF SUCH SURCHARGE AS 28 REQUIRED BY THIS SECTION. 29 10. INTERNET SALES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS 30 SECTION, IN THE CASE OF A PREPAID CARD THAT CONSUMERS PURCHASE VIA THE 31 INTERNET, THE DISCLOSURES REQUIRED BY SUBDIVISIONS ONE AND TWO OF THIS 32 SECTION SHALL BE DISCLOSED CLEARLY AND CONSPICUOUSLY ON THE INTERNET 33 SITE THAT THE CONSUMER MUST ACCESS PRIOR TO PURCHASING THE PREPAID CARD. 34 S 103-C. CUSTOMER SERVICE. 1. GENERAL REQUIREMENTS. ALL PREPAID 35 PROVIDERS SHALL ESTABLISH AND MAINTAIN A TOLL-FREE CUSTOMER SERVICE 36 TELEPHONE NUMBER. PREPAID PROVIDERS SHALL PROVIDE CUSTOMER SERVICE TWEN- 37 TY-FOUR HOURS A DAY, SEVEN DAYS A WEEK. CUSTOMER SERVICE MAY BE PROVIDED 38 BY A COMBINATION OF LIVE OPERATOR, INTERACTIVE VOICE RESPONSE, AND ELEC- 39 TRONIC VOICE RECORDING OF CUSTOMER INQUIRIES AND COMPLAINTS. LIVE OPER- 40 ATOR SERVICE SHALL BE AVAILABLE AT A MINIMUM FROM 9:00 A.M. TO 9:00 P.M. 41 IF AN ELECTRONIC VOICE RECORDER IS USED, THE PREPAID PROVIDER SHALL 42 ATTEMPT TO CONTACT THE CONSUMER NO LATER THAN THE NEXT DAY FOLLOWING THE 43 DATE OF THE RECORDING. 44 2. SPECIFIC REQUIREMENTS. CUSTOMER SERVICE MUST ENABLE A CONSUMER TO 45 ACCURATELY AND CLEARLY OBTAIN ALL APPLICABLE INFORMATION REGARDING A 46 PREPAID CARD OR PREPAID SERVICE, INCLUDING: 47 (A) A DESCRIPTION OF ALL APPLICABLE FEES AND SURCHARGES; 48 (B) SPECIFIC PER MINUTE RATES TO SPECIFIC DESTINATIONS; 49 (C) BALANCE REMAINING; AND 50 (D) MINUTES AVAILABLE AND REMAINING FOR USE IN A SINGLE, UNINTERRUPTED 51 CALL TO A SINGLE, REQUESTED DESTINATION. 52 3. REFUNDS. A PREPAID PROVIDER SHALL PROVIDE A REFUND TO ANY CONSUMER 53 WHO PURCHASES A PREPAID CARD IF THE TELECOMMUNICATION NETWORK SERVICES 54 ASSOCIATED WITH THE PREPAID SERVICE FAIL TO OPERATE IN A COMMERCIALLY 55 REASONABLE MANNER. THE REFUND SHALL BE IN AN AMOUNT NOT LESS THAN THE 56 VALUE REMAINING ON THE PREPAID CARD AT THE TIME OF THE FAILURE AND IN A. 4412 7 1 THE FORM OF EITHER A REPLACEMENT PREPAID CARD OR BY ADDING THE REFUND 2 AMOUNT TO THE PREPAID CARD'S CURRENT BALANCE. ALL REFUNDS SHALL BE 3 PROVIDED TO THE CONSUMER WITHIN SIXTY DAYS FROM THE DATE OF RECEIPT OF 4 NOTIFICATION FROM THE CONSUMER THAT THE PREPAID SERVICE HAS FAILED TO 5 OPERATE IN A COMMERCIALLY REASONABLE MANNER. 6 4. EXPIRATION. PREPAID CARDS WITHOUT A SPECIFIC EXPIRATION DATE OR 7 POLICY PRINTED ON THE PREPAID CARD AND WITH A BALANCE OF PREPAID SERVICE 8 REMAINING SHALL BE CONSIDERED ACTIVE FOR A MINIMUM OF ONE YEAR FROM THE 9 DATE OF ACTIVATION, OR IF RECHARGED, FROM THE DATE OF THE LAST RECHARGE. 10 5. SERVICE SUSPENSION. A PREPAID PROVIDER HAS THE RIGHT TO SUSPEND USE 11 OF A PREPAID CARD AND ITS ACCESS TO PREPAID SERVICE WHEN IT REASONABLY 12 BELIEVES THAT (A) THE PREPAID CARD HAS BEEN STOLEN, OR (B) THE PREPAID 13 SERVICE HAS BEEN OBTAINED FRAUDULENTLY, OR (C) THE PREPAID CARD OR 14 SERVICE IS BEING USED IN AN ILLEGAL OR FRAUDULENT MANNER. IF THE PREPAID 15 PROVIDER SUSPENDS USE OF THE PREPAID SERVICE, THE PREPAID PROVIDER SHALL 16 DIRECT AN AFFECTED CONSUMER TO CONTACT CUSTOMER SERVICE WHERE AN EXPLA- 17 NATION SHALL BE PROVIDED. 18 S 103-D. ENFORCEMENT. 1. VIOLATIONS. THE COMMISSION SHALL HAVE THE 19 POWER AND AUTHORITY TO ASSESS A PENALTY AGAINST ANY PERSON THAT VIOLATES 20 ANY PROVISION OF THIS ARTICLE OR ANY REGULATION OR ORDER OF THE COMMIS- 21 SION IMPLEMENTING OR ENFORCING THE PROVISIONS OF THIS ARTICLE. THE 22 PENALTY FOR A FIRST VIOLATION SHALL NOT EXCEED FIVE THOUSAND DOLLARS AND 23 THE PENALTY FOR EACH SUBSEQUENT VIOLATION SHALL NOT EXCEED TEN THOUSAND 24 DOLLARS. ALL MONEYS COLLECTED FROM ANY PENALTY SHALL BE PAID INTO THE 25 GENERAL FUND. 26 2. REGULATIONS. THE COMMISSION SHALL ADOPT ANY RULES AND REGULATIONS 27 NECESSARY TO EFFECTUATE THE PURPOSES OF THIS ARTICLE. 28 3. PRIVATE RIGHT OF ACTION. ANY PERSON WHO SUFFERS DAMAGES AS THE 29 RESULT OF, OR IS OTHERWISE AGGRIEVED BY, A VIOLATION OF ANY PROVISION OF 30 THIS ARTICLE, MAY COMMENCE A CAUSE OF ACTION OR ASSERT A COUNTERCLAIM IN 31 A COURT OF COMPETENT JURISDICTION. 32 S 3. Subdivision (g) of section 103 of the abandoned property law, as 33 added by chapter 170 of the laws of 2004, is amended to read as follows: 34 (g) "Gift certificate" shall mean a written promise or electronic 35 payment device that: (i) is usable at a single merchant or an affiliated 36 group of merchants that share the same name, mark, or logo, or is usable 37 at multiple, unaffiliated merchants or service providers; and (ii) is 38 issued in a specified amount; and (iii) may or may not be increased in 39 value or reloaded; and (iv) is purchased and/or loaded on a prepaid 40 basis for the future purchase or delivery of any goods or services; and 41 (v) is honored upon presentation. Gift certificate shall not include an 42 electronic payment device linked to a deposit account, or prepaid tele- 43 phone calling cards regulated under [section ninety-two-f] ARTICLE 44 FIVE-A of the public service law. Gift certificate also shall not 45 include flexible spending arrangements as defined in Section 106(c)(2) 46 of the Internal Revenue Code, 26 U.S.C. S 106(c)(2); flexible spending 47 accounts subject to Section 125 of the Internal Revenue Code, 26 U.S.C. 48 S 125; Archer MSAs as defined in Section 220(d) of the Internal Revenue 49 Code, 26 U.S.C. S 220(d); dependent care reimbursement accounts subject 50 to Section 129 of the Internal Revenue Code, 26 U.S.C. S 129; health 51 savings accounts subject to Section 223(d) of the Internal Revenue Code, 52 26 U.S.C. S 223(d), as amended by Section 1201 of the Medicare 53 Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. 54 No. 108-173; or similar accounts from which, under the Internal Revenue 55 Code and its implementing regulations, individuals may pay medical 56 expenses, health care expenses, dependent care expenses, or similar A. 4412 8 1 expenses on a pretax basis. Gift certificate also shall not include a 2 prepaid discount card or program used to purchase identified goods or 3 services at a price or percentage below the normal and customary price; 4 provided that the expiration date of the prepaid discount card or 5 program is clearly and conspicuously disclosed. Gift certificate also 6 shall not include payroll cards or other electronic payment devices 7 which are linked to a deposit account and which are given in exchange 8 for goods or services rendered. 9 S 4. Subdivision 1 of section 396-i of the general business law, as 10 amended by chapter 170 of the laws of 2004, is amended to read as 11 follows: 12 1. For the purposes of this section, "gift certificate" shall mean a 13 written promise or electronic payment device that: (i) is usable at a 14 single merchant or an affiliated group of merchants that share the same 15 name, mark, or logo, or is usable at multiple, unaffiliated merchants or 16 service providers; and (ii) is issued in a specified amount; and (iii) 17 may or may not be increased in value or reloaded; and (iv) is purchased 18 and/or loaded on a prepaid basis for the future purchase or delivery of 19 any goods or services; and (v) is honored upon presentation. Gift 20 certificate shall not include an electronic payment device linked to a 21 deposit account, or prepaid telephone calling cards regulated under 22 [section ninety-two-f] ARTICLE FIVE-A of the public service law. Gift 23 certificate also shall not include flexible spending arrangements as 24 defined in Section 106(c)(2) of the Internal Revenue Code, 26 U.S.C. S 25 106(c)(2); flexible spending accounts subject to Section 125 of the 26 Internal Revenue Code, 26 U.S.C. S 125; Archer MSAs as defined in 27 Section 220(d) of the Internal Revenue Code, 26 U.S.C. S 220(d); depend- 28 ent care reimbursement accounts subject to Section 129 of the Internal 29 Revenue Code, 26 U.S.C. S 129; health savings accounts subject to 30 Section 223(d) of the Internal Revenue Code, 26 U.S.C. S 223(d), as 31 amended by Section 1201 of the Medicare Prescription Drug, Improvement, 32 and Modernization Act of 2003, Pub. L. No. 108-173; or similar accounts 33 from which, under the Internal Revenue Code and its implementing regu- 34 lations, individuals may pay medical expenses, health care expenses, 35 dependent care expenses, or similar expenses on a pretax basis. Gift 36 certificate also shall not include a prepaid discount card or program 37 used to purchase identified goods or services at a price or percentage 38 below the normal and customary price; provided that the expiration date 39 of the prepaid discount card or program is clearly and conspicuously 40 disclosed. Gift certificate also shall not include payroll cards or 41 other electronic payment devices which are linked to a deposit account 42 and which are given in exchange for goods or services rendered. 43 S 5. This act shall take effect on the first of the calendar month 44 commencing immediately after the ninetieth day after it shall have 45 become a law; provided that any rules and regulations, or any other 46 actions, necessary to implement the provisions of this act on its effec- 47 tive date are authorized and directed to be completed on or before such 48 date. This act shall only apply to prepaid cards printed on or after 49 such effective date, and to advertisements, promotions, point-of-sale 50 materials and voice prompts relating to a prepaid service that is 51 created, aired, printed, distributed or otherwise disseminated on or 52 after such effective date.