224-A - Consumer protection.
§ 224-a. Consumer protection. 1. Notification of commission. Every cable television company shall notify the commission of any network change or significant programming change no later than the later occurring of forty-five days prior to the network change or significant programming change or five business days after the cable television company first knows of such change. 2. Notification of subscribers. (a) Every cable television company shall notify each of its subscribers who are receiving the network of programming subject to change or are affected by a network change or significant programming change of such change no later than the later occurring of thirty-days prior to such change or thirty days after the cable television company first knows of such change. (b) Such notice shall be given to each affected subscriber in any one of the following forms: (1) (i) by the mailing of separate written notice to the subscriber's billing address of record; (ii) by a written notation printed on the subscriber's regular billing statement; or (iii) by a written notice accompanying the subscriber's regular billing statement. (2) Such notice shall also promptly be given by a written on-screen visual message prominently displayed on the affected television program channel or channels, and on the program listing channel of the cable system, if one is provided, at least once each hour for no less than a thirty-day period. (c) Upon application of a cable television company, the commission may order that no notice need be provided pursuant to this subdivision upon a written finding under standards to be promulgated by the commission that a change was not a network change or significant programming change as defined in subdivisions thirteen and fourteen of section two hundred twelve of this article. (d) Upon application of a cable television company, the commission may order that an applicable form of notice as defined in paragraph (b) of this subdivision or notice period as provided for in paragraph (a) of this subdivision be changed for a particular notice, upon a written finding that such an order is in the best interests of the subscribers or is otherwise warranted for reasons of practicality. Upon a written finding that a cable television company's compliance with subparagraph two of paragraph (b) of this subdivision is technically unfeasible, the commission may grant to such company a general waiver of compliance. Any cable television company granted a general waiver pursuant to this paragraph shall notify the commission within three days if compliance becomes technically feasible. (e) Upon application of a subscriber or upon its own motion, the commission may order that a particular notice be sent to subscribers as the commission shall determine to be appropriate. The commission shall make such order only upon finding that the subscribers who shall receive notice thereunder are receiving the network or programming subject to the change or will be affected by the network change or significant programming change. (f) Notification under this subdivision shall include a description of the subscriber's rights under this section, as applicable. 3. Failure to give notice. If a cable television company fails to comply with the notice requirements of subdivision two of this section, any subscribers affected thereby may downgrade or terminate their service without charge at any time up to thirty-days after the date on which proper notice of such change is provided and such downgrade ortermination shall be deemed effective for billing purposes on the date of such change. 4. Rate, programming, service and equipment information. (a) Each cable television company shall provide to each of its subscribers at the time of the initial subscription and at least semi-annually thereafter a written description, materially accurate as of the first day of the previous month, of all programming and other services offered on the cable television system and of the rates and charges relating to such programming and other services; provided however, that with respect to the provision of such description to new subscribers the cable television company shall also provide any notices required by this article not included in such written description that have been provided to current subscribers as of the date of the initial subscription. Such written description shall, in addition, contain a statement of significant rights accorded the subscriber pursuant to this article and any other law, or rules and regulations promulgated pursuant thereto, such statement to be in a form approved by, or at the option of the cable television company, prepared and revised as appropriate on a quarterly basis, by the commission. The commission may extend the time within which a cable television company must make its semi-annual mailing where such an extension is in the interest of such company's subscribers or is otherwise warranted for reasons of practicality. Upon a finding that a cable television company bills its subscribers only on an annual basis by use of a coupon book, and makes no other regular mailing to subscribers more often than quarterly, the commission shall allow such cable television company to mail such written description to its subscribers annually. (b) Each cable television company shall provide to each person who requests information concerning rates, programming, service charges or procedures, or who requests any change of service, a written description, materially accurate as of the first day of the previous month, of the programs and services offered and of the rates and charges relating to such programs and services. Such written description shall, in addition, contain a statement of significant rights accorded the subscriber pursuant to this article and any other law, or rules and regulations promulgated pursuant thereto, such statement to be in a form approved by, or at the option of the cable television company, prepared and revised as appropriate on a quarterly basis, by the commission. Any person who makes such a request in person to a cable television customer service representative or salesperson must immediately be supplied with a copy of such written description. Any person who makes a request by telephone must be supplied with such written description sent by first class mail within ten business days of such request. (c) Each cable television company shall provide each customer service representative and each salesperson with copies of the most current written description and shall advise them of the requirements of this section. 5. Downgrade and termination following notice of a network change or a significant programming change. Where an affected subscriber, following receipt of the notice required under paragraph (a) of subdivision two of this section, elects in person, in writing or by telephone within forty-five days of receiving such notice to have service terminated or to downgrade, no charge may be imposed by the cable television company for such downgrade or termination. 6. Discontinuance of significantly promoted programming. (a) All cable television companies shall maintain for one year or such longer period, not to exceed three years, as the commission shall deem necessary for the enforcement of this section, and make available to thecommission on request, copies of all advertisements, lists or other notifications regarding programming sent to or made available to the public. (b) Any cable television company which promotes repeatedly, and in a significant manner, the availability of a network on its basic service tier and within a period of six months following such promotion, makes a network change by moving such network from the basic service tier to a more expensive service tier, shall: (1) for a period of ninety days immediately following such network change, provide oral and written notification prior to any commitment to subscribe and prior to installation, that such network is not available, or is not offered at the service tier where it was previously available, or was advertised as being available; and (2) offer to all affected subscribers who request modification of service within thirty days following notification pursuant to subdivision two of this section and who commenced their subscription to the basic service tier within the ninety day period immediately preceding the final day of such promotion or immediately preceding the date on which such network was moved to the premium tier, whichever is earlier, or who commenced their subscription prior to the date on which such network was moved but within the ninety day period immediately following the final day of such promotion and provide to all such subscribers: either (i) refunds of all installation, upgrade, and other one time charges, imposed on such subscribers within six months prior to such moving of such network, upon request by an affected subscriber for termination of service, or (ii) (A) an upgrade at no charge to the premium service tier which carries such network, and (B) the premium service tier which carries such network at no charge for the time period between the last day of the promotion and six months hence. (c) Where any cable television company promotes repeatedly, and in a significant manner, the availability on the basic service tier of a network which is subject to the notice requirements of subdivision two of this section and, within six months of such promotion, fails, except in circumstances described in paragraph (b) of this subdivision, to make available such network as promoted, and the discontinued network was (1) a substantial inducement to a significant number of subscribers, and (2) continues to be reasonably available to the cable television company, such cable television company shall, within thirty days following notification pursuant to subdivision two of this section, offer to all affected subscribers who commenced their subscription to the basic service tier within the ninety day period immediately preceding the final day of such promotion or immediately preceding the date on which such network was discontinued, whichever is earlier, or who commenced their subscription prior to the date on which such network was discontinued but within the ninety day period immediately following the final day of such promotion, and upon the request of such subscribers provide: either (i) a termination of service and the refund of all installation, upgrade, and other one time charges, imposed on such subscribers within six months prior to the discontinuance of such network, or (ii) the continuation of service and a credit to all subscribers who request such credit equal to a portion of the subscriber's basic service tier charges for each month or portion of a month that such network is not available in the period of time between the last day of the promotion and six months hence, provided however, that any such subscriber who elects to receive such a credit of basic service tier changes and who disputes the amount of such credit may petition the commission for a higher amount of credit within thirty days of the offer of credit made by the cable television company. Upon anysuch petition the commission shall determine the amount of credit, if any, which shall be provided to all qualified subscribers unless such group relief is unreasonable in the circumstances. In determining the amount of the credit, if any, to be provided to such subscribers by a cable television company, the commission shall fix a fair and equitable amount. In fixing such fair and equitable amount the commission shall consider: (I) the nature, type, frequency and impact of any notices provided subscribers that may have provided warning that such a network might be removed or replaced or lack of such notice, (II) the value to the affected subscribers of such network, (III) the relative cost to the cable television company of such network as determined from published network rate cards, (IV) the value to subscribers, and the cost to the cable television company, of any network which has been substituted for the terminated network or provided in lieu of such network, (V) the availability or nonavailability, at no additional cost to the subscriber, of any continuing program or network offerings which may be similar in type or nature to that provided by the terminated network, and (VI) the nature, type, frequency and impact of the promotion by the cable television company of the terminated network and, (VII) any other factor which the commission shall expressly find to be fairly applicable. Notwithstanding any other provision of this subdivision, in no event shall the commission require that such a credit be made by a cable television company in an amount to exceed thirty-three and one-third percent of the basic service tier charges billed or billable to the subscriber who requests such credit for each month or portion of a month that the subject network is not available in the period of time between the last day of the promotion and six months hence. If the commission is prevented by law from considering some or all of these factors the remainder of this subdivision shall continue in effect. For purposes of this paragraph, the term "credit" shall mean an amount of money payable to a subscriber under the terms of this paragraph, which amount may be paid, at the option of the cable television company, in the form of a reduction in monthly service charges over a period of time not to exceed six months. (d) Where an affected subscriber following receipt of any written notice required under subdivision two of this section that concerns change of a network on a premium service tier, elects in writing, by telephone or in person no later than thirty days after receiving such notice to have service terminated or to downgrade, such subscriber may demand (1) a rebate of all installation, upgrade, and other one time charges relating to such premium service tier, imposed on such subscriber within six months prior to the subject network change or programming change, and (2) a rebate of monthly service charges that already have been paid by such subscriber for, and only for, each such cable television service or subscription tier or level affected by a network change or programming change, provided however, that such rebate shall be limited to the prorated amount already paid for the period following the date of such network change or programming change. (e) (1) For purposes of this subdivision, the term "promotes repeatedly and in a significant manner" and the term "reasonably available" shall have such meanings as the commission shall by regulation determine. (2) In any proceeding before the commission to determine whether the provisions of this subdivision have been complied with, where the question of whether the availability or promotion of a network constituted a substantial inducement to subscribers is raised, the commission shall consider: (i) the nature, type, frequency and impact ofthe promotion of such network, and (ii) the nature, type, frequency and impact of any reasonably prominent notices provided to subscribers that may have provided warning that such network might be deleted or replaced. (3) In addition to any other defenses that may be available under statutory or common law, it shall be an affirmative defense to any claim of rebate pursuant to paragraph (b) or (c) of this subdivision that the notification or advertisement that is claimed to have substantially induced the subscriber: (i) was on a national or regional network and did not mention any specific cable company, and (ii) that such cable television company did not authorize, request, suggest, foster or cooperate in making such notification or advertisement, and (iii) there was no material relationship between the cable television company, any of its officers, or any shareholders owning ten percent or more of its stock and the company making the advertising, any of its officers, or any shareholders owning ten percent or more of its stock except for relationships between or among such companies, officers, or shareholders for the purchasing of programming. (4) In any determination made by the commission pursuant to this subdivision, the commission shall set forth the factors it considered and the significance given to such factors, including, where relevant, those factors listed in this subdivision, and the reasons for its decision. Such requirement may not be waived by any party or counsel. 7. (a) Whenever, upon complaint or upon its own motion, and after giving public notice and an opportunity for a public evidentiary hearing, which accords due process to the cable television company, the commission finds that a cable television company has not complied with any provision of this section, the commission shall order such compliance therewith and may order such penalty as is hereinafter provided. (b) A determination of the commission, after the procedures set forth in paragraph (a) of this subdivision have been complied with, that a cable television company has failed to comply with any provision of this section shall be considered a violation of subdivision one of section two hundred twenty-seven-a of this article, and shall subject such company to the imposition of a money forfeiture pursuant to said subdivision. Upon a determination by the commission, upon adequate record evidence, that a cable television company has willfully or intentionally violated the provisions of this section, or that such a company has repeatedly violated such provisions so as to permit a fair inference of a willful or intentional violation by such company, the commission may direct such company to forfeit to the state of New York a sum to be set by the commission not to exceed three thousand dollars for each such violation. If, in any twenty-four month period, a cable television company violates subdivision two or six of this section on two separate occasions, such conduct shall constitute prima facie evidence of repeated, willful violations. (c) Nothing in this subdivision shall be construed to impair, alter, limit, modify, enlarge, abrogate or restrict any right granted by statutory or common law to the attorney general or any other person. 8. Other consumer protection regulations. The commission shall adopt such other rules and regulations, providing consumer protections to customers of cable television companies, as the commission deems necessary and proper. The regulations shall include, but not be limited to, provisions governing applications for service, termination, reconnection of service, customer notice, late payment charges and customer complaints.