§ 224-A — Consumer protection

§ 224-a. Consumer protection. 1. Notification of commission. Every\ncable television company shall notify the commission of any network\nchange or significant programming change no later than the later\noccurring of forty-five days prior to the network change or significant\nprogramming change or five business days after the cable television\ncompany first knows of such change.\n 2. Notification of subscribers. (a) Every cable television company\nshall notify each of its subscribers who are receiving the network of\nprogramming subject to change or are affected by a network change or\nsignificant programming change of such change no later than the later\noccurring of thirty-days prior to such change or thirty days after the\ncable television company first knows of such change.\n (b) Such notice shall be given to each affected subscriber in any one\nof the following forms:\n (1) (i) by the mailing of separate written notice to the subscriber's\nbilling address of record;\n (ii) by a written notation printed on the subscriber's regular billing\nstatement; or\n (iii) by a written notice accompanying the subscriber's regular\nbilling statement.\n (2) Such notice shall also promptly be given by a written on-screen\nvisual message prominently displayed on the affected television program\nchannel or channels, and on the program listing channel of the cable\nsystem, if one is provided, at least once each hour for no less than a\nthirty-day period.\n (c) Upon application of a cable television company, the commission may\norder that no notice need be provided pursuant to this subdivision upon\na written finding under standards to be promulgated by the commission\nthat a change was not a network change or significant programming change\nas defined in subdivisions thirteen and fourteen of section two hundred\ntwelve of this article.\n (d) Upon application of a cable television company, the commission may\norder that an applicable form of notice as defined in paragraph (b) of\nthis subdivision or notice period as provided for in paragraph (a) of\nthis subdivision be changed for a particular notice, upon a written\nfinding that such an order is in the best interests of the subscribers\nor is otherwise warranted for reasons of practicality. Upon a written\nfinding that a cable television company's compliance with subparagraph\ntwo of paragraph (b) of this subdivision is technically unfeasible, the\ncommission may grant to such company a general waiver of compliance. Any\ncable television company granted a general waiver pursuant to this\nparagraph shall notify the commission within three days if compliance\nbecomes technically feasible.\n (e) Upon application of a subscriber or upon its own motion, the\ncommission may order that a particular notice be sent to subscribers as\nthe commission shall determine to be appropriate. The commission shall\nmake such order only upon finding that the subscribers who shall receive\nnotice thereunder are receiving the network or programming subject to\nthe change or will be affected by the network change or significant\nprogramming change.\n (f) Notification under this subdivision shall include a description of\nthe subscriber's rights under this section, as applicable.\n 3. Failure to give notice. If a cable television company fails to\ncomply with the notice requirements of subdivision two of this section,\nany subscribers affected thereby may downgrade or terminate their\nservice without charge at any time up to thirty-days after the date on\nwhich proper notice of such change is provided and such downgrade or\ntermination shall be deemed effective for billing purposes on the date\nof such change.\n 4. Rate, programming, service and equipment information. (a) Each\ncable television company shall provide to each of its subscribers at the\ntime of the initial subscription and at least semi-annually thereafter a\nwritten description, materially accurate as of the first day of the\nprevious month, of all programming and other services offered on the\ncable television system and of the rates and charges relating to such\nprogramming and other services; provided however, that with respect to\nthe provision of such description to new subscribers the cable\ntelevision company shall also provide any notices required by this\narticle not included in such written description that have been provided\nto current subscribers as of the date of the initial subscription. Such\nwritten description shall, in addition, contain a statement of\nsignificant rights accorded the subscriber pursuant to this article and\nany other law, or rules and regulations promulgated pursuant thereto,\nsuch statement to be in a form approved by, or at the option of the\ncable television company, prepared and revised as appropriate on a\nquarterly basis, by the commission. The commission may extend the time\nwithin which a cable television company must make its semi-annual\nmailing where such an extension is in the interest of such company's\nsubscribers or is otherwise warranted for reasons of practicality. Upon\na finding that a cable television company bills its subscribers only on\nan annual basis by use of a coupon book, and makes no other regular\nmailing to subscribers more often than quarterly, the commission shall\nallow such cable television company to mail such written description to\nits subscribers annually.\n (b) Each cable television company shall provide to each person who\nrequests information concerning rates, programming, service charges or\nprocedures, or who requests any change of service, a written\ndescription, materially accurate as of the first day of the previous\nmonth, of the programs and services offered and of the rates and charges\nrelating to such programs and services. Such written description shall,\nin addition, contain a statement of significant rights accorded the\nsubscriber pursuant to this article and any other law, or rules and\nregulations promulgated pursuant thereto, such statement to be in a form\napproved by, or at the option of the cable television company, prepared\nand revised as appropriate on a quarterly basis, by the commission. Any\nperson who makes such a request in person to a cable television customer\nservice representative or salesperson must immediately be supplied with\na copy of such written description. Any person who makes a request by\ntelephone must be supplied with such written description sent by first\nclass mail within ten business days of such request.\n (c) Each cable television company shall provide each customer service\nrepresentative and each salesperson with copies of the most current\nwritten description and shall advise them of the requirements of this\nsection.\n 5. Downgrade and termination following notice of a network change or a\nsignificant programming change. Where an affected subscriber, following\nreceipt of the notice required under paragraph (a) of subdivision two of\nthis section, elects in person, in writing or by telephone within\nforty-five days of receiving such notice to have service terminated or\nto downgrade, no charge may be imposed by the cable television company\nfor such downgrade or termination.\n 6. Discontinuance of significantly promoted programming. (a) All cable\ntelevision companies shall maintain for one year or such longer period,\nnot to exceed three years, as the commission shall deem necessary for\nthe enforcement of this section, and make available to the commission on\nrequest, copies of all advertisements, lists or other notifications\nregarding programming sent to or made available to the public.\n (b) Any cable television company which promotes repeatedly, and in a\nsignificant manner, the availability of a network on its basic service\ntier and within a period of six months following such promotion, makes a\nnetwork change by moving such network from the basic service tier to a\nmore expensive service tier, shall:\n (1) for a period of ninety days immediately following such network\nchange, provide oral and written notification prior to any commitment to\nsubscribe and prior to installation, that such network is not available,\nor is not offered at the service tier where it was previously available,\nor was advertised as being available; and\n (2) offer to all affected subscribers who request modification of\nservice within thirty days following notification pursuant to\nsubdivision two of this section and who commenced their subscription to\nthe basic service tier within the ninety day period immediately\npreceding the final day of such promotion or immediately preceding the\ndate on which such network was moved to the premium tier, whichever is\nearlier, or who commenced their subscription prior to the date on which\nsuch network was moved but within the ninety day period immediately\nfollowing the final day of such promotion and provide to all such\nsubscribers: either (i) refunds of all installation, upgrade, and other\none time charges, imposed on such subscribers within six months prior to\nsuch moving of such network, upon request by an affected subscriber for\ntermination of service, or (ii) (A) an upgrade at no charge to the\npremium service tier which carries such network, and (B) the premium\nservice tier which carries such network at no charge for the time period\nbetween the last day of the promotion and six months hence.\n (c) Where any cable television company promotes repeatedly, and in a\nsignificant manner, the availability on the basic service tier of a\nnetwork which is subject to the notice requirements of subdivision two\nof this section and, within six months of such promotion, fails, except\nin circumstances described in paragraph (b) of this subdivision, to make\navailable such network as promoted, and the discontinued network was (1)\na substantial inducement to a significant number of subscribers, and (2)\ncontinues to be reasonably available to the cable television company,\nsuch cable television company shall, within thirty days following\nnotification pursuant to subdivision two of this section, offer to all\naffected subscribers who commenced their subscription to the basic\nservice tier within the ninety day period immediately preceding the\nfinal day of such promotion or immediately preceding the date on which\nsuch network was discontinued, whichever is earlier, or who commenced\ntheir subscription prior to the date on which such network was\ndiscontinued but within the ninety day period immediately following the\nfinal day of such promotion, and upon the request of such subscribers\nprovide: either (i) a termination of service and the refund of all\ninstallation, upgrade, and other one time charges, imposed on such\nsubscribers within six months prior to the discontinuance of such\nnetwork, or (ii) the continuation of service and a credit to all\nsubscribers who request such credit equal to a portion of the\nsubscriber's basic service tier charges for each month or portion of a\nmonth that such network is not available in the period of time between\nthe last day of the promotion and six months hence, provided however,\nthat any such subscriber who elects to receive such a credit of basic\nservice tier changes and who disputes the amount of such credit may\npetition the commission for a higher amount of credit within thirty days\nof the offer of credit made by the cable television company. Upon any\nsuch petition the commission shall determine the amount of credit, if\nany, which shall be provided to all qualified subscribers unless such\ngroup relief is unreasonable in the circumstances. In determining the\namount of the credit, if any, to be provided to such subscribers by a\ncable television company, the commission shall fix a fair and equitable\namount.\n In fixing such fair and equitable amount the commission shall\nconsider:\n (I) the nature, type, frequency and impact of any notices provided\nsubscribers that may have provided warning that such a network might be\nremoved or replaced or lack of such notice, (II) the value to the\naffected subscribers of such network, (III) the relative cost to the\ncable television company of such network as determined from published\nnetwork rate cards, (IV) the value to subscribers, and the cost to the\ncable television company, of any network which has been substituted for\nthe terminated network or provided in lieu of such network, (V) the\navailability or nonavailability, at no additional cost to the\nsubscriber, of any continuing program or network offerings which may be\nsimilar in type or nature to that provided by the terminated network,\nand (VI) the nature, type, frequency and impact of the promotion by the\ncable television company of the terminated network and, (VII) any other\nfactor which the commission shall expressly find to be fairly\napplicable. Notwithstanding any other provision of this subdivision, in\nno event shall the commission require that such a credit be made by a\ncable television company in an amount to exceed thirty-three and\none-third percent of the basic service tier charges billed or billable\nto the subscriber who requests such credit for each month or portion of\na month that the subject network is not available in the period of time\nbetween the last day of the promotion and six months hence. If the\ncommission is prevented by law from considering some or all of these\nfactors the remainder of this subdivision shall continue in effect. For\npurposes of this paragraph, the term "credit" shall mean an amount of\nmoney payable to a subscriber under the terms of this paragraph, which\namount may be paid, at the option of the cable television company, in\nthe form of a reduction in monthly service charges over a period of time\nnot to exceed six months.\n (d) Where an affected subscriber following receipt of any written\nnotice required under subdivision two of this section that concerns\nchange of a network on a premium service tier, elects in writing, by\ntelephone or in person no later than thirty days after receiving such\nnotice to have service terminated or to downgrade, such subscriber may\ndemand (1) a rebate of all installation, upgrade, and other one time\ncharges relating to such premium service tier, imposed on such\nsubscriber within six months prior to the subject network change or\nprogramming change, and (2) a rebate of monthly service charges that\nalready have been paid by such subscriber for, and only for, each such\ncable television service or subscription tier or level affected by a\nnetwork change or programming change, provided however, that such rebate\nshall be limited to the prorated amount already paid for the period\nfollowing the date of such network change or programming change.\n (e) (1) For purposes of this subdivision, the term "promotes\nrepeatedly and in a significant manner" and the term "reasonably\navailable" shall have such meanings as the commission shall by\nregulation determine.\n (2) In any proceeding before the commission to determine whether the\nprovisions of this subdivision have been complied with, where the\nquestion of whether the availability or promotion of a network\nconstituted a substantial inducement to subscribers is raised, the\ncommission shall consider: (i) the nature, type, frequency and impact of\nthe promotion of such network, and (ii) the nature, type, frequency and\nimpact of any reasonably prominent notices provided to subscribers that\nmay have provided warning that such network might be deleted or\nreplaced.\n (3) In addition to any other defenses that may be available under\nstatutory or common law, it shall be an affirmative defense to any claim\nof rebate pursuant to paragraph (b) or (c) of this subdivision that the\nnotification or advertisement that is claimed to have substantially\ninduced the subscriber: (i) was on a national or regional network and\ndid not mention any specific cable company, and (ii) that such cable\ntelevision company did not authorize, request, suggest, foster or\ncooperate in making such notification or advertisement, and (iii) there\nwas no material relationship between the cable television company, any\nof its officers, or any shareholders owning ten percent or more of its\nstock and the company making the advertising, any of its officers, or\nany shareholders owning ten percent or more of its stock except for\nrelationships between or among such companies, officers, or shareholders\nfor the purchasing of programming.\n (4) In any determination made by the commission pursuant to this\nsubdivision, the commission shall set forth the factors it considered\nand the significance given to such factors, including, where relevant,\nthose factors listed in this subdivision, and the reasons for its\ndecision. Such requirement may not be waived by any party or counsel.\n 7. (a) Whenever, upon complaint or upon its own motion, and after\ngiving public notice and an opportunity for a public evidentiary\nhearing, which accords due process to the cable television company, the\ncommission finds that a cable television company has not complied with\nany provision of this section, the commission shall order such\ncompliance therewith and may order such penalty as is hereinafter\nprovided.\n (b) A determination of the commission, after the procedures set forth\nin paragraph (a) of this subdivision have been complied with, that a\ncable television company has failed to comply with any provision of this\nsection shall be considered a violation of subdivision one of section\ntwo hundred twenty-seven-a of this article, and shall subject such\ncompany to the imposition of a money forfeiture pursuant to said\nsubdivision. Upon a determination by the commission, upon adequate\nrecord evidence, that a cable television company has willfully or\nintentionally violated the provisions of this section, or that such a\ncompany has repeatedly violated such provisions so as to permit a fair\ninference of a willful or intentional violation by such company, the\ncommission may direct such company to forfeit to the state of New York a\nsum to be set by the commission not to exceed three thousand dollars for\neach such violation. If, in any twenty-four month period, a cable\ntelevision company violates subdivision two or six of this section on\ntwo separate occasions, such conduct shall constitute prima facie\nevidence of repeated, willful violations.\n (c) Nothing in this subdivision shall be construed to impair, alter,\nlimit, modify, enlarge, abrogate or restrict any right granted by\nstatutory or common law to the attorney general or any other person.\n 8. Other consumer protection regulations. The commission shall adopt\nsuch other rules and regulations, providing consumer protections to\ncustomers of cable television companies, as the commission deems\nnecessary and proper. The regulations shall include, but not be limited\nto, provisions governing applications for service, termination,\nreconnection of service, customer notice, late payment charges and\ncustomer complaints.\n