ASSEMBLY, No. 1520

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 8, 1996

By Assemblymen IMPREVEDUTO and KELLY

AN ACT concerning certain consumer contracts and services, and supplementing P.L.1960, c.39 (C.56:8-1 et seq.).

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. As used in this act:

    "Cable television company" or "CATV company" means any person owning, controlling, operating or managing a cable television system and includes any agency or instrumentality of the State or any of its political subdivisions, but does not include a telephone, telegraph or electric company utility regulated by the Board of Public Utilities if the utility only leases or rents or otherwise provides to a CATV company wire conduits, cable or pole space used in the redistribution of television signals to or toward subscribers or customers of that CATV company.

    "Consumer" means a natural person who purchases merchandise from a retailer or services from a public utility or cable television company for personal, family or household purposes.

    "Consumer contract" means a written agreement in which an individual contracts for merchandise or for services for cash or on credit and the merchandise or services are obtained for personal, family or household purposes. "Consumer contract" includes writings required to complete the consumer transaction.

    "Merchandise" means any objects, wares, goods, commodities or other tangible items offered, directly or indirectly, to consumers for sale.

    "Public utility" or "utility" shall include every individual, copartnership, association, corporation or joint stock company, their lessees, trustees or receivers appointed by any court whatsoever, their successors, heirs or assigns, that now or hereafter may own, operate, manage or control within this State any pipeline, gas, electric light, heat, power, water, oil, sewer, solid waste collection, solid waste disposal, telephone or telegraph system, plant or equipment for public use, under privileges granted or hereafter to be granted by this State or by any political subdivision thereof.

    "Retailer" means a person who engages in the business of selling merchandise as herein defined for cash or on credit at retail to consumers.

    2. a. Whenever a consumer contract is entered into between a consumer and a retailer relating to the sale of merchandise which is to be delivered by the retailer or the retailer's agent to the consumer at a later date, and the parties have agreed that the presence of the consumer is required at the time of delivery, the retailer shall inform the consumer, either at the time of the sale or at a later date of the consumer's right to receive delivery within either a morning, or a.m., timeframe period or an afternoon, or p.m., timeframe period and shall specify the time for the delivery after offering the consumer either the a.m. or p.m. timeframe period at the time the consumer requests the delivery if the consumer so requests. Once a delivery time is established, the retailer or the retailer's agent shall deliver the merchandise to the consumer within the agreed upon a.m. or p.m. timeframe period.

    b. If the merchandise is not delivered within the specified a.m. or p.m. timeframe period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of the retailer, the consumer may bring an action in the Superior Court, Law Division, Special Civil Part, against the retailer for lost wages, expenses actually incurred, or other actual damages not exceeding a total of $500.

    c. No action shall be considered valid if the consumer was not present at the time, within the specified period, when the retailer or the retailer's agent attempted to make the delivery or made a diligent attempt to notify the consumer of its inability to do so because of unforeseen or unavoidable occurrences beyond its control.

    d. In any legal action pursuant to subsection b. of this section, logs and other business records maintained by the retailer or the retailer's agent in the ordinary course of business shall be prima facie evidence of the time period specified for the delivery and of the time when the merchandise was delivered, or of a diligent attempt by the retailer or the retailer's agent to notify the consumer of delay caused by unforeseen or unavoidable occurrences.

    e. It shall be a defense to the action if a diligent attempt was made to notify the consumer of the delay caused by unforeseen or unavoidable occurrences beyond the control of the retailer or the retailer's agent, or the retailer or the retailer's agent was unable to notify the consumer of the delay because of the consumer's absence or unavailability during the agreed upon a.m. or p.m. timeframe period, and in either instance, the retailer or the retailer's agent makes the delivery within two hours of a newly agreed upon a.m. or p.m. timeframe period or if the consumer unreasonably declines to arrange a new delivery time.

    3. a. Cable television companies shall inform their subscribers of their right to service connection or repair within either a morning, or a.m., timeframe period or an afternoon, or p.m., timeframe period, if the presence of the subscriber is required, by offering the subscriber either the a.m., or p.m. timeframe period at the time the subscriber calls for service connection or repair, or by notifying the subscriber by mail annually of this service. Whenever a subscriber contracts with a CATV company for a service connection or repair, and the parties have agreed that the presence of the subscriber is required, the CATV company shall specify the time for the commencement of the service connection or repair within the agreed upon a.m. or p.m. timeframe period if the subscriber requests.

    b. If the service connection or repair is not commenced within the specified a.m. or p.m. timeframe period, except for delays caused by unforeseen or unavoidable occurrences beyond the control of the CATV company, the subscriber may bring an action in the Superior Court, Law Division, Special Civil Part, against the CATV company for lost wages, expenses actually incurred or other actual damages not exceeding a total of $500.

    c. No action shall be considered valid if the subscriber was not present at the time, within the specified period, that the CATV company attempted to make the service connection or repair.

    d. In any legal action pursuant to subsection b. of this section, logs and other business records maintained by the CATV company or its agent in the ordinary course of business shall be prima facie evidence of the time period specified for the commencement of the service connection or repair and the time that the CATV company or its agents attempted to make the service connection or repair, or of a diligent attempt by the CATV company to notify the subscriber of a delay caused by unforeseen or unavoidable occurrences.

    e. It shall be a defense to the action if a diligent attempt was made to notify the subscriber of delay caused by unforeseen or unavoidable occurrences beyond the control of the CATV company or its agent, or the CATV company or its agents was unable to notify the subscriber because of the subscriber's absence or unavailability during the agreed upon a.m. or p.m. timeframe period and in either case, the CATV company commenced service or repairs within a newly agreed upon a.m. or p.m. timeframe period.

    f. No action shall be considered valid against a CATV company pursuant to this section when the franchise or any local ordinance provides the subscriber with a remedy for a delay in commencement of a service connection or repair and the subscriber has elected to pursue that remedy. If a subscriber elects to pursue such a remedy against a CATV company under this section, the franchising or State or local licensing authority shall be barred from imposing any fine, penalty, or other sanction against the company, arising out of the same incident.

    4. a. Public utilities shall inform their subscribers of their right to service connection or repair within either a morning, or a.m., timeframe period or an afternoon, or p.m., timeframe period, if the presence of the subscriber is required by offering the subscriber either the a.m. or p.m. timeframe period at the time the subscriber calls for service connection or repair or by notifying the subscriber by mail three times a year of this service. Whenever a subscriber contracts with the utility for a service connection or repair and the parties have agreed that the presence of the subscriber is required, the utility shall specify the time for the commencement of the service connection or repair within the agreed upon a.m. or p.m. timeframe period if the subscriber requests.

    b. If the service connection or repair is not commenced within the specified a.m. or p.m. timeframe period, except for delays caused by unforeseen or unavoidable circumstances beyond the control of the company, the subscriber may bring an action in Superior Court, Law Division, Special Civil Part, against the utility for lost wages, expenses actually incurred, or other actual damages not exceeding a total of $500.

    c. No action shall be considered valid if the subscriber was not present at the time, within the specified period, that the utility attempted to make the service connection or repair.

    In addition, no action shall be considered valid if, in the case of a telephone installation, the subscriber fails, at the time the installation is contracted for, to provide the utility with a phone number where the subscriber may be contacted within the specified period agreed upon for the installation of the telephone.

    d. In any legal action pursuant to subsection b. of this section, logs and other business records maintained by the utility or its agents in the ordinary course of business shall be prima facie evidence of the time period specified for the commencement of the service connection or repair and of the time that the utility attempted to make the service connection or repair, or of a diligent attempt by a utility to notify the subscriber of delay caused by unforeseen or unavoidable occurrences.

    e. It shall be a defense to the action if a diligent attempt was made by the utility to notify the subscriber of delay caused by unforeseen or unavoidable occurrences beyond the control of the utility, and the utility commenced service within a newly agreed upon a.m. or p.m. timeframe period.

    5. This act shall take effect on the first day of the second month after enactment.

STATEMENT

    This bill requires retailers who sell merchandise which is to be delivered at a later date to specify to the purchaser, if the purchaser is required to be present at the time of the delivery, that he has the right to receive delivery within either a morning or an afternoon time period. Each retailer is to offer the purchaser that option at the time that the purchaser requests the delivery. If the retailer fails to deliver the merchandise within the specified period, this bill permits the purchaser to sue the retailer in small claims court for up to $500 in lost wages or actual damages.

    Under the provisions of the bill, it is a defense to any such action if the retailer makes a diligent attempt to notify the purchaser of a delay in delivery caused by unforeseen circumstances, or if the retailer or his agent was unable to notify the purchaser of the delay because the purchaser was absent or unavailable during the specified delivery period, or, in either instance, the retailer or his agent makes the delivery within two hours of a newly agreed upon a.m. or p.m. timeframe or the purchaser unreasonably refuses to agree to a new delivery time.

    The bill provides a similar remedy against cable television companies which fail to deliver connection or repair services within a specified a.m., or p.m., timeframe period.

    The bill also provides that public utilities and cable television companies are to inform their subscribers of their right to service connection or repair within either a morning or an afternoon time period, if it is necessary that the subscriber be present at the time services are rendered. Public utilities covered under this bill include entities that manage or control within this State any pipeline, gas, electric light, heat, power, water, oil, sewer, solid waste collection, solid waste disposal, telephone or telegraph system. Each utility is to offer the subscriber either the morning or afternoon time period at the time the subscriber calls for service connection or repair, or may notify the subscriber by mail three times a year of this service. In the case of a cable television company, each such company is to offer the subscriber either the morning or afternoon time period at the time the subscriber calls for service connection or repair, or may notify the subscriber by mail annually of this service.

    In addition, the bill establishes that a subscriber contracting for a telephone installation is required to provide the utility with a phone number where the subscriber may be contacted during the time period when the installation is scheduled to take place. The bill provides that in the case of a telephone installation, no ensuing legal action shall be considered valid if, at the time the installation was contracted for, the subscriber failed to provide the utility with a phone number where he could be contacted within the specified period agreed upon for the installation of the telephone.

    It shall be a defense to the action if a diligent attempt was made by the utility to notify the subscriber of delay caused by unforseen or unavoidable occurrences beyond the control of the utility, and the utility commenced service within a newly agreed upon morning or afternoon time period.

Provides consumer remedy for failure to deliver merchandise or service at time promised.