Bill Text: NY A07459 | 2009-2010 | General Assembly | Introduced
Bill Title: Relates to residential wireless telephone service; disclosure, notification and consumer protection requirements in wireless telecommunications consumer transactions; plain language disclosures to each customer or potential customer; requires clear billing; trial period lasts for 15 days past first bill; consumer complaints to consumer protection board; establishes rules and regulations.
Spectrum: Moderate Partisan Bill (Democrat 42-6)
Status: (Introduced - Dead) 2010-01-06 - referred to consumer affairs and protection [A07459 Detail]
Download: New_York-2009-A07459-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7459
2009-2010 Regular Sessions
I N A S S E M B L Y
April 9, 2009
___________
Introduced by M. of A. O'DONNELL, BRODSKY, DelMONTE, GALEF, CYMBROWITZ,
FIELDS, BRADLEY, ENGLEBRIGHT, GUNTHER, LIFTON, JOHN, BROOK-KRASNY,
GORDON, LANCMAN, SPANO -- Multi-Sponsored by -- M. of A. ALFANO,
BARRA, BENJAMIN, BING, BRENNAN, CHRISTENSEN, CLARK, COLTON, DESTITO,
DIAZ, DINOWITZ, HEASTIE, JACOBS, KOON, V. LOPEZ, LUPARDO, MARKEY,
McDONOUGH, McENENY, MILLMAN, O'MARA, PAULIN, REILLY, N. RIVERA, ROSEN-
THAL, SEMINERIO, SWEENEY, TITUS, WALKER, WEINSTEIN, WEISENBERG -- read
once and referred to the Committee on Consumer Affairs and Protection
AN ACT to amend the general business law and the public service law, in
relation to the provision of residential wireless telephone service
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "wireless telephone service consumer protection act".
3 S 2. Statement of legislative findings and purpose. The legislature
4 finds that residential consumers in New York are offered the opportunity
5 to purchase wireless telephone service from a variety of service provid-
6 ers and that the conduct of such providers in making and implementing
7 these offers varies widely. In many instances, consumers are required to
8 evaluate service offerings without receiving a full and fair disclosure
9 of the terms of the service offering or an adequate means to evaluate
10 the offering in practice. The purpose of this legislation is to provide
11 a regulatory program for wireless telephone service provider conduct and
12 for the terms and conditions of such service other than the entry of or
13 the rates charged by any such provider.
14 S 3. The general business law is amended by adding a new section 398-e
15 to read as follows:
16 S 398-E. DISCLOSURE, NOTIFICATION AND CONSUMER PROTECTION REQUIREMENTS
17 IN WIRELESS TELECOMMUNICATIONS CONSUMER TRANSACTIONS. 1. DEFINITIONS.
18 FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE
19 FOLLOWING MEANINGS:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10901-01-9
A. 7459 2
1 (A) "AUTHORIZED RETAILER" MEANS A RETAILER AUTHORIZED BY A WIRELESS
2 TELEPHONE SERVICE CARRIER, INCLUDING RESELLERS OF WIRELESS TELEPHONE
3 SERVICE PROVIDED BY A WIRELESS TELEPHONE SERVICE CARRIER, TO BE AN AGENT
4 OF SUCH WIRELESS TELEPHONE CARRIER OR RESELLER.
5 (B) "BOARD" MEANS THE CONSUMER PROTECTION BOARD.
6 (C) "DIRECTOR" MEANS THE EXECUTIVE DIRECTOR OF THE CONSUMER PROTECTION
7 BOARD.
8 (D) "ENHANCED WIRELESS 911 SERVICE" MEANS THE SERVICE REQUIRED TO BE
9 PROVIDED BY WIRELESS TELEPHONE SERVICE PROVIDERS PURSUANT TO THE FCC
10 ORDER.
11 (E) "FCC ORDER" MEANS ALL ORDERS ISSUED BY THE FEDERAL COMMUNICATIONS
12 COMMISSION PURSUANT TO THE PROCEEDING ENTITLED "REVISION OF THE COMMIS-
13 SION'S RULE TO ENSURE COMPATIBILITY WITH ENHANCED 911 EMERGENCY CALLING
14 SYSTEMS (CC DOCKET NO. 94-102; RM-8143) OR ANY SUCCESSOR PROCEEDING,
15 REGARDING THE DELIVERY OF ANI AND ALI AS OF THE DATES AND ACCORDING TO
16 THE OTHER CRITERIA ESTABLISHED THEREIN AND THE RULES ADOPTED BY THE
17 FEDERAL COMMUNICATIONS COMMISSION IN ANY SUCH PROCEEDING, AS SUCH RULES
18 MAY BE AMENDED FROM TIME TO TIME.
19 (F) "SERVICE PLAN" MEANS A CONTRACT ENTERED INTO BETWEEN A WIRELESS
20 TELEPHONE SERVICE CARRIER AND A RETAIL CUSTOMER FOR THE PROVISION OF
21 WIRELESS TELEPHONE SERVICE OVER A MUTUALLY AGREED UPON PERIOD OF TIME.
22 (G) "WIRELESS TELEPHONE SERVICE" MEANS A TWO-WAY REAL TIME VOICE TELE-
23 COMMUNICATIONS SERVICE THAT IS INTERCONNECTED TO A PUBLIC SWITCHED TELE-
24 PHONE NETWORK AND IS PROVIDED BY A COMMERCIAL MOBILE RADIO SERVICE, AS
25 SUCH TERM IS DEFINED BY 47 C.F.R. SECTION 20.3; PROVIDED, HOWEVER, FOR
26 THE PURPOSES OF THIS SECTION, THE TERM WIRELESS TELEPHONE SERVICE SHALL
27 NOT INCLUDE A PREPAID CALLING SERVICE AS THAT TERM IS DEFINED IN SECTION
28 NINETY-TWO-F OF THE PUBLIC SERVICE LAW.
29 (H) "WIRELESS TELEPHONE SERVICE CARRIER" MEANS A COMMERCIAL MOBILE
30 RADIO SERVICE PROVIDER OF WIRELESS TELEPHONE SERVICE AS SUCH TERM IS
31 DEFINED IN THE UNITED STATES CODE OF FEDERAL REGULATIONS 47 C.F.R. 20.3
32 OR A RESELLER OF WIRELESS TELEPHONE SERVICE PROVIDED BY A COMMERCIAL
33 MOBILE RADIO SERVICE AS DEFINED BY SUCH 47 C.F.R 20.3.
34 2. DISCLOSURE REQUIREMENTS. (A) EVERY WIRELESS TELEPHONE SERVICE
35 PROVIDER AND AUTHORIZED RETAILER SHALL MAKE AVAILABLE CLEAR, CONSPICU-
36 OUS, PLAIN LANGUAGE DISCLOSURES TO EACH CUSTOMER OR POTENTIAL CUSTOMER
37 AT RETAIL SALES LOCATIONS OF SUCH WIRELESS TELEPHONE CARRIER OR AUTHOR-
38 IZED RETAILER AND ON ANY INTERNET WEBSITE WHERE A WIRELESS TELEPHONE
39 SERVICE PLAN CAN BE ENTERED INTO, OF THE FOLLOWING INFORMATION CONCERN-
40 ING ANY PLAN OR PROPOSED PLAN OFFERED FOR THE PROVISION OF RESIDENTIAL
41 WIRELESS TELEPHONE SERVICE TO SUCH CUSTOMER:
42 I. THE CALLING AREA FOR THE PLAN;
43 II. THE MONTHLY ACCESS FEE OR BASE CHARGE;
44 III. THE NUMBER OF AIRTIME MINUTES INCLUDED IN THE PLAN;
45 IV. ANY NIGHT AND WEEKEND MINUTES INCLUDED IN THE PLAN OR OTHER
46 DIFFERING CHARGES FOR DIFFERENT TIME PERIODS AND THE TIME PERIODS WHEN
47 NIGHT AND WEEKEND MINUTES OR OTHER CHARGES APPLY;
48 V. THE CHARGES FOR EXCESS OR ADDITIONAL MINUTES;
49 VI. WHETHER OR NOT, AND THE EXTENT TO WHICH, PER-MINUTE DOMESTIC OR
50 INTERNATIONAL LONG DISTANCE CHARGES ARE INCLUDED IN OTHER RATES, AND, TO
51 THE EXTENT NOT INCLUDED, THE APPLICABLE PER-MINUTE LONG DISTANCE RATES;
52 VII. PER-MINUTE ROAMING OR OFF-NETWORK CHARGES;
53 VIII. THE AMOUNT OF ANY ADDITIONAL TAXES, FEES, OR SURCHARGES THAT
54 WILL BE COLLECTED OR RETAINED BY THE WIRELESS TELEPHONE SERVICE PROVID-
55 ER;
A. 7459 3
1 IX. IF THE PLAN REQUIRES A FIXED-TERM CONTRACT, THE DURATION OF SUCH
2 CONTRACT;
3 X. THE AMOUNT OF ANY EARLY TERMINATION FEE AND THE CONDITIONS UNDER
4 WHICH ANY SUCH EARLY TERMINATION FEE WOULD APPLY, INCLUDING THE LENGTH
5 OF ANY TRIAL PERIOD DURING WHICH NO EARLY TERMINATION FEE WOULD APPLY;
6 XI. A STATEMENT NOTIFYING THE CUSTOMER THAT THE SERVICE INCLUDES BASIC
7 WIRELESS 911 SERVICE;
8 XII. THE INFORMATION WHICH IS INCLUDED IN THE EDUCATIONAL PLAN FOR
9 INFORMING THE PUBLIC ABOUT THE ENHANCED WIRELESS 911 SERVICE IN NEW YORK
10 STATE REQUIRED BY SUBDIVISION EIGHT OF SECTION THREE HUNDRED
11 TWENTY-EIGHT OF THE COUNTY LAW AND WHICH IS AN EXPLANATION OF THE
12 ENHANCED WIRELESS 911 SYSTEM AND A PROGRESS REPORT ON THE
13 COUNTY-BY-COUNTY IMPLEMENTATION OF THE STATEWIDE SYSTEM AND THE
14 TOLL-FREE HOTLINE AND WEBSITE INFORMATION TO PERMIT THE CONSUMER TO
15 ACCESS SUCH INFORMATION VIA THE INTERNET IN ACCORDANCE WITH SUBDIVISION
16 EIGHT OF SECTION THREE HUNDRED TWENTY-EIGHT OF THE COUNTY LAW;
17 XIII. A COVERAGE MAP PREPARED BY THE PROVIDER USING GENERALLY ACCEPTED
18 INDUSTRY METHODOLOGIES AND STANDARDS; AND
19 XIV. BASED UPON CUSTOMER SUPPLIED INFORMATION REGARDING ANTICIPATED
20 USAGE PATTERNS, A GOOD FAITH ESTIMATE OF THE MONTHLY FIXED AND USAGE
21 CHARGES AND ADDITIONAL TAXES, FEES, OR SURCHARGES AND OF THE ANTICIPATED
22 TOTAL MONTHLY BILL FOR SUCH CUSTOMER UNDER SUCH PLAN, EXCEPT THAT THIS
23 PROVISION SHALL NOT APPLY TO WIRELESS SERVICE THAT IS PRE-PAID PRIOR TO
24 ACTIVATION OF SERVICE AND THAT IS NOT SUBJECT TO MONTHLY BILLING AFTER
25 ACTIVATION OF SERVICE.
26 (B) AT THE TIME A CUSTOMER INITIATES A WIRELESS SERVICE PLAN, THE
27 CARRIER SHALL, OR IF THE CUSTOMER INITIATES A WIRELESS SERVICE PLAN
28 THROUGH AN AUTHORIZED RETAILER, THE AUTHORIZED RETAILER SHALL, PROVIDE
29 OR CONFIRM IN WRITING ALL OF THE INFORMATION REQUIRED IN PARAGRAPH (A)
30 OF THIS SUBDIVISION AS IT APPLIES TO THE SPECIFIC CONTRACT ENTERED INTO
31 BY THE NEW CUSTOMER PRIOR TO THE FINALIZATION OF THE TRANSACTION,
32 PROVIDED, HOWEVER WHEN AN EXISTING CUSTOMER OF A WIRELESS SERVICE CARRI-
33 ER AGREES TO A CHANGE IN SERVICE WHICH RESULTS IN AN EXTENSION OF A
34 CONTRACT BETWEEN THE CUSTOMER AND SUCH CARRIER, THE CARRIER SHALL
35 PROVIDE OR CONFIRM SUCH CHANGE IN SERVICE.
36 3. BILLING. EXCEPT FOR WIRELESS SERVICE THAT IS PRE-PAID PRIOR TO
37 ACTIVATION OF SERVICE AND THAT IS NOT SUBJECT TO MONTHLY BILLING AFTER
38 ACTIVATION OF SERVICE, WIRELESS TELEPHONE SERVICE CARRIERS' BILLING
39 STATEMENTS SHALL:
40 (A) BE CLEARLY ORGANIZED AND DESCRIBE IN PLAIN LANGUAGE THE PRODUCTS
41 AND SERVICES FOR WHICH CHARGES ARE IMPOSED;
42 (B) DISTINGUISH CHARGES THAT ARE DIRECTLY RELATED TO SERVICE AND
43 FEATURES RETAINED BY THE CARRIER FROM TAXES, FEES AND OTHER CHARGES THAT
44 ARE COLLECTED AND REMITTED BY THE CARRIER TO ANY FEDERAL, STATE OR LOCAL
45 GOVERNMENT ENTITY;
46 (C) NOT INCLUDE ANY CHARGES OR FEES FOR PRODUCTS AND SERVICES UNLESS
47 AUTHORIZED BY THE CUSTOMER;
48 (D) ITEMIZE ROAMING CHARGES WITHIN SIXTY DAYS OF THE CALL BEING PLACED
49 AND IDENTIFY THE DATE AND ORIGINATING LOCATION OF THE CALL;
50 (E) INCLUDE THE TOLL-FREE NUMBER MAINTAINED BY THE CONSUMER PROTECTION
51 BOARD WHICH RECEIVES COMPLAINTS FROM WIRELESS TELEPHONE SERVICE CUSTOM-
52 ERS RELATING TO THEIR WIRELESS SERVICE; AND
53 (F) FOR THE PURPOSES OF THIS SUBDIVISION, WIRELESS TELEPHONE SERVICE
54 CARRIERS MAY NOT LABEL COST RECOVERY FEES OR CHARGES AS TAXES.
55 4. TRIAL PERIOD. THE TERMS ON WHICH WIRELESS TELEPHONE SERVICES ARE
56 PROVIDED TO ANY CUSTOMER SHALL INCLUDE A TRIAL PERIOD WHICH SHALL END NO
A. 7459 4
1 EARLIER THAN FIFTEEN DAYS AFTER THE FIRST BILL IS RENDERED TO SUCH
2 CUSTOMER FOLLOWING SERVICE ACTIVATION AND DURING WHICH PERIOD SUCH
3 CUSTOMER MAY, AFTER PAYMENT FOR SERVICES USED, TERMINATE SUCH SERVICE
4 WITHOUT INCURRING ANY TERMINATION FEES OR CHARGES OR ANY OTHER PENALTY
5 OF ANY KIND, AND MAY, UPON RETURN OF ANY HANDSET BOUGHT OR LEASED IN
6 CONNECTION WITH SUCH SERVICE, RECEIVE A PRO RATED REFUND OF ANY AMOUNTS
7 PAID FOR SUCH A HANDSET.
8 5. CONSUMER COMPLAINTS; IMPLEMENTING REGULATIONS; PENALTIES FOR
9 VIOLATIONS. (A) WIRELESS TELEPHONE SERVICE CUSTOMERS MAY FILE COMPLAINTS
10 RELATED TO THEIR WIRELESS SERVICE WITH THE EXECUTIVE DIRECTOR OF THE
11 CONSUMER PROTECTION BOARD, WHO IS AUTHORIZED TO RESOLVE SUCH COMPLAINTS.
12 THE DIRECTOR OR HIS OR HER DESIGNEE IS AUTHORIZED TO CONDUCT SUCH INVES-
13 TIGATIONS AS MAY BE NECESSARY TO RESOLVE SUCH COMPLAINTS, TO ADMINISTER
14 OATHS AND TAKE AFFIDAVITS IN RELATION TO ANY MATTER OR PROCEEDING IN THE
15 EXERCISE OF POWERS AND DUTIES UNDER THIS SECTION, AND TO SUBPOENA AND
16 REQUIRE THE ATTENDANCE OF WITNESSES AND THE PRODUCTION OF BOOKS, PAPERS,
17 CONTRACTS AND ANY OTHER DOCUMENTS PERTAINING TO ANY INVESTIGATION
18 CONDUCTED PURSUANT TO THIS SECTION. IF ANY PERSON REFUSES TO COMPLY WITH
19 A SUBPOENA ISSUED UNDER THIS PARAGRAPH, THE DIRECTOR MAY PETITION A
20 COURT OF COMPETENT JURISDICTION TO ENFORCE THE SUBPOENA AND FOR SUCH
21 SANCTIONS AS THE COURT MAY ORDER.
22 (B) THE DIRECTOR SHALL PROMULGATE ANY RULES AND REGULATIONS NECESSARY
23 TO IMPLEMENT THIS SECTION AND IS FURTHER AUTHORIZED TO ISSUE ANY ORDERS
24 NECESSARY TO ENFORCE THIS SECTION AND SUCH RULES AND REGULATIONS. EXCEPT
25 AS SHALL BE PRE-EMPTED BY FEDERAL LAW REGULATING WIRELESS TELEPHONE
26 SERVICE PROVIDERS, SUCH RULES AND REGULATIONS SHALL BE CONSISTENT WITH
27 FEDERAL LAW REGULATING WIRELESS TELEPHONE SERVICE OR PROVIDERS OF WIRE-
28 LESS TELEPHONE SERVICE.
29 (C) THE DIRECTOR MAY ASSESS A CIVIL PENALTY NOT TO EXCEED TWO THOUSAND
30 DOLLARS PER VIOLATION AGAINST ANY WIRELESS TELEPHONE SERVICE PROVIDER OR
31 AUTHORIZED RETAILER THAT NEGLECTS OR KNOWINGLY FAILS TO COMPLY WITH ANY
32 REQUIREMENT OF THIS SECTION, OF REGULATIONS PROMULGATED UNDER THIS
33 SECTION, OR OF ANY ORDER OF THE DIRECTOR IMPLEMENTING OR ENFORCING THIS
34 SECTION OR REGULATIONS PROMULGATED THEREUNDER. ALL MONEYS RECOVERED FROM
35 ANY SUCH PENALTY SHALL BE PAID INTO THE STATE TREASURY TO THE CREDIT OF
36 THE GENERAL FUND.
37 6. REPORTING. AT LEAST ANNUALLY THE BOARD SHALL REPORT CUSTOMER
38 COMPLAINTS BY CARRIER REGARDING WIRELESS TELEPHONE SERVICE IN THE STATE.
39 SUCH REPORT SHALL INCLUDE INFORMATION ON CARRIER CUSTOMER COMPLAINTS
40 FILED WITH AND RESOLVED BY THE DIRECTOR. THE REPORT MAY INCLUDE AN ANAL-
41 YSIS OF SUCH COMPLAINTS AND RECOMMENDATIONS, IF ANY, TO ADDRESS ANY
42 ISSUES THAT ARE IDENTIFIED BY THE BOARD. THE REPORT REQUIRED BY THIS
43 SUBDIVISION MAY BE INCLUDED IN THE REPORT PREPARED BY THE BOARD PURSUANT
44 TO SECTION FIVE HUNDRED FIFTY-THREE OF THE EXECUTIVE LAW.
45 7. APPLICABILITY. FOR PURPOSES OF THIS SECTION, THE WIRELESS TELEPHONE
46 SERVICE TO WHICH THE PROVISIONS OF THIS SECTION APPLY, IS BEING PROVIDED
47 OR BEING PROPOSED TO BE PROVIDED TO A RESIDENTIAL CUSTOMER WHERE THE
48 PLACE OF PRIMARY USE, AS THAT TERM IS USED IN SECTION ONE HUNDRED EIGHT-
49 Y-SIX-E OF THE TAX LAW, IS LOCATED IN THIS STATE.
50 8. SEVERABILITY. THE PROVISIONS OF THIS SECTION ARE SEVERABLE, AND IF
51 ANY PART OR PROVISION HEREOF, OR THE APPLICATION THEREOF TO ANY PERSON
52 OR CIRCUMSTANCE, SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDIC-
53 TION TO BE INVALID OR UNENFORCEABLE, SUCH JUDGEMENT SHALL NOT AFFECT,
54 IMPAIR OR INVALIDATE THE REMAINING PROVISIONS OF THIS SECTION OR THE
55 APPLICATION OF ANY SUCH REMAINING PROVISIONS TO ANY PERSON OR CIRCUM-
56 STANCE, BUT SHALL BE CONFINED IN ITS OPERATION TO THE PROVISION, PERSON
A. 7459 5
1 OR CIRCUMSTANCE DIRECTLY INVOLVED IN THE CONTROVERSY IN WHICH SUCH JUDG-
2 MENT SHALL HAVE BEEN RENDERED.
3 S 4. Paragraph a of subdivision 6 of section 5 of the public service
4 law, as added by chapter 684 of the laws of 1997, is amended to read as
5 follows:
6 a. Application of the provisions of this chapter to cellular telephone
7 services is suspended unless the commission, no sooner than one year
8 after the effective date of this subdivision, makes a determination,
9 after notice and hearing, that suspension of the application of the
10 provisions of this chapter shall cease to the extent found necessary to
11 protect the public interest; PROVIDED, HOWEVER, THAT NOTHING IN THIS
12 PARAGRAPH SHALL SUSPEND OR LIMIT THE AUTHORITY PROVIDED TO THE CONSUMER
13 PROTECTION BOARD IN SECTION FIVE HUNDRED FIFTY-THREE OF THE EXECUTIVE
14 LAW AND SECTION THREE HUNDRED NINETY-EIGHT-E OF THE GENERAL BUSINESS LAW
15 TO IMPLEMENT THE PROVISIONS OF LAW CONTAINED THEREIN OR TO PROMULGATE
16 AND ENFORCE REGULATIONS TO AFFORD CONSUMER PROTECTIONS TO RESIDENTIAL
17 CUSTOMERS OF CELLULAR OR WIRELESS TELEPHONE SERVICE PROVIDERS.
18 S 5. This act shall take effect on the one hundred eightieth day after
19 it shall have become a law; provided that the executive director of the
20 consumer protection board is authorized, on or before such date, to
21 promulgate any and all rules and regulations and to take any other meas-
22 ures necessary to implement this act on such effective date.
