Title 11 — Bankruptcy
Chapter 3 — Case Administration
§ 366. Utility service
Statutory text
Except as provided in subsections (b) and (c) of this section, a utility may not alter, refuse, or discontinue service to, or discriminate against, the trustee or the debtor solely on the basis of the commencement of a case under this title or that a debt owed by the debtor to such utility for service rendered before the order for relief was not paid when due.
Such utility may alter, refuse, or discontinue service if neither the trustee nor the debtor, within 20 days after the date of the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for service after such date. On request of a party in interest and after notice and a hearing, the court may order reasonable modification of the amount of the deposit or other security necessary to provide adequate assurance of payment.
For purposes of this subsection, the term “assurance of payment” means—
a cash deposit;
a letter of credit;
a certificate of deposit;
a surety bond;
a prepayment of utility consumption; or
another form of security that is mutually agreed on between the utility and the debtor or the trustee.
For purposes of this subsection an administrative expense priority shall not constitute an assurance of payment.
Subject to paragraphs (3) and (4), with respect to a case filed under chapter 11, a utility referred to in subsection (a) may alter, refuse, or discontinue utility service, if during the 30-day period beginning on the date of the filing of the petition, the utility does not receive from the debtor or the trustee adequate assurance of payment for utility service that is satisfactory to the utility.
On request of a party in interest and after notice and a hearing, the court may order modification of the amount of an assurance of payment under paragraph (2).
In making a determination under this paragraph whether an assurance of payment is adequate, the court may not consider—
the absence of security before the date of the filing of the petition;
the payment by the debtor of charges for utility service in a timely manner before the date of the filing of the petition; or
the availability of an administrative expense priority.
Notwithstanding any other provision of law, with respect to a case subject to this subsection, a utility may recover or set off against a security deposit provided to the utility by the debtor before the date of the filing of the petition without notice or order of the court.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Pub. L. 95–598 · 92 Stat. 2549
Enacted · 11 U.S.C. § 366
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2578
Source evidence
Code source credit
Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2578Pub. L. 98–353 title III § 443 · 98 Stat. 333
Inserted · 11 U.S.C. § 366(a)
Pub. L. 98–353 inserted “of the commencement of a case under this title or” after “basis”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 98–353 inserted “of the commencement of a case under this title or” after “basis”.Enacted provision · exact public law section
Sec. 443. Section 366(a) of title 11 of the United States Code is amended by inserting “of the commencement of a case under this title or” after “basis”.Pub. L. 109–8 § 417(1) · 119 Stat. 23
Substituted · 11 U.S.C. § 366(a)
Pub. L. 109–8, § 417(1), substituted “subsections (b) and (c)” for “subsection (b)”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 109–8, § 417(1), substituted “subsections (b) and (c)” for “subsection (b)”.Enacted provision · exact public law section
(1) in subsection (a), by striking “subsection (b)” and inserting “subsections (b) and (c)”; andPub. L. 109–8 § 417(2) · 119 Stat. 23
Added · 11 U.S.C. § 366(c)
Pub. L. 109–8, § 417(2), added subsec. (c)
Source evidence
Code amendment note
Subsec. (c). Pub. L. 109–8, § 417(2), added subsec. (c).Enacted provision · exact public law section
(2) by adding at the end the following: “(c) (1) (A) For purposes of this subsection, the term ‘assurance of payment’ means— “(i) a cash deposit; “(ii) a letter of credit; “(iii) a certificate of deposit; “(iv) a surety bond; “(v) a prepayment of utility consumption; or “(vi) another form of security that is mutually agreed on between the utility and the debtor or the trustee. “(B) For purposes of this subsection an administrative expense priority shall not constitute an assurance of payment. “(2) Subject to paragraphs (3) and (4), with respect to a case filed under chapter 11, a utility referred to in subsection (a) may alter, refuse, or discontinue utility service, if during the 30-day period beginning on the date of the filing of the petition, the utility does not receive from the debtor or the trustee adequate assurance of payment for utility service that is satisfactory to the utility. “(3) (A) On request of a party in interest and after notice and a hearing, the court may order modification of the amount of an assurance of payment under paragraph (2). “(B) In making a determination under this paragraph whether an assurance of payment is adequate, the court may not consider— “(i) the absence of security before the date of the filing of the petition; “(ii) the payment by the debtor of charges for utility service in a timely manner before the date of the filing of the petition; or “(iii) the availability of an administrative expense priority. “(4) Notwithstanding any other provision of law, with respect to a case subject to this subsection, a utility may recover or set off against a security deposit provided to the utility by the debtor before the date of the filing of the petition without notice or order of the court.” .Consolidated Appropriations Act, 2021
Pub. L. 116–260 § 1001(h)(2) · 134 Stat. 1182
Struck · 11 U.S.C. § 366(d)
Pub. L. 116–260, § 1001(h)(2), struck out subsec. (d) which read as follows: “Notwithstanding any other provision of this section, a utility may not alter, refuse, or discontinue service to a debtor who does not furnish adequate assurance of payment under this section if the debtor—
Source evidence
Code amendment note
Subsec. (d). Pub. L. 116–260, § 1001(h)(2), struck out subsec. (d) which read as follows: “Notwithstanding any other provision of this section, a utility may not alter, refuse, or discontinue service to a debtor who does not furnish adequate assurance of payment under this section if the debtor—“(1) is an individual; “(2) makes a payment to the utility for any debt owed to the utility for service provided during the 20-day period beginning on the date of the order for relief; and “(3) after the date on which the 20-day period beginning on the date of the order for relief ends, makes a payment to the utility for services provided during the pendency of case when such a payment becomes due.”
Enacted provision · exact public law section
SEC. 1001. CORONAVIRUS RELIEF FUND EXTENSION. Section 601(d)(3) of the Social Security Act (42 U.S.C. 801(d)(3)) is amended by striking “December 30, 2020” and inserting “December 31, 2021”.Effective date note
Pub. L. 116–260, div. FF, title X, § 1001(h)(2), Dec. 27, 2020, 134 Stat. 3221, provided that the amendment made by section 1001(h)(2) is effective on the date that is 1 year after Dec. 27, 2020.Consolidated Appropriations Act, 2021
Pub. L. 116–260 § 1001(h)(1) · 134 Stat. 1182
Added · 11 U.S.C. § 366(d)
Pub. L. 116–260, § 1001(h)(1), added subsec. (d)
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 116–260, § 1001(h)(1), added subsec. (d).Enacted provision · exact public law section
SEC. 1001. CORONAVIRUS RELIEF FUND EXTENSION. Section 601(d)(3) of the Social Security Act (42 U.S.C. 801(d)(3)) is amended by striking “December 30, 2020” and inserting “December 31, 2021”.Effective date note
Pub. L. 116–260, div. FF, title X, § 1001(h)(2), Dec. 27, 2020, 134 Stat. 3221, provided that the amendment made by section 1001(h)(2) is effective on the date that is 1 year after Dec. 27, 2020.
5 of 6 references resolved to an enrolled provision · 1 partial
Notes
Historical and Revision Notes
legislative statements
Section 366 of the House amendment represents a compromise between comparable provisions contained in H.R. 8200 as passed by the House and the Senate amendment. Subsection (a) is modified so that the applicable date is the date of the order for relief rather than the date of the filing of the petition. Subsection (b) contains a similar change but is otherwise derived from section 366(b) of the Senate amendment, with the exception that a time period for continued service of 20 days rather than 10 days is adopted.
senate report no. 95–989
This section gives debtors protection from a cut-off of service by a utility because of the filing of a bankruptcy case. This section is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility. The utility may not alter, refuse, or discontinue service because of the nonpayment of a bill that would be discharged in the bankruptcy case. Subsection (b) protects the utility company by requiring the trustee or the debtor to provide, within ten days, adequate assurance of payment for service provided after the date of the petition.
Editorial Notes
Amendments1984–2020 · 3 rounds
2020
Subsec. (d). Pub. L. 116–260, § 1001(h)(2), struck out subsec. (d) which read as follows: “Notwithstanding any other provision of this section, a utility may not alter, refuse, or discontinue service to a debtor who does not furnish adequate assurance of payment under this section if the debtor—
“(1) is an individual;
“(2) makes a payment to the utility for any debt owed to the utility for service provided during the 20-day period beginning on the date of the order for relief; and
“(3) after the date on which the 20-day period beginning on the date of the order for relief ends, makes a payment to the utility for services provided during the pendency of case when such a payment becomes due.”
Pub. L. 116–260, § 1001(h)(1), added subsec. (d).
2005
Subsec. (a). Pub. L. 109–8, § 417(1), substituted “subsections (b) and (c)” for “subsection (b)”.
Subsec. (c). Pub. L. 109–8, § 417(2), added subsec. (c).
1984
Subsec. (a). Pub. L. 98–353 inserted “of the commencement of a case under this title or” after “basis”.
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
Pub. L. 116–260, div. FF, title X, § 1001(h)(2), , 134 Stat. 3221, provided that the amendment made by section 1001(h)(2) is effective on the date that is 1 year after .
Effective Date of 2005 Amendment
Amendment by Pub. L. 109–8 effective 180 days after , and not applicable with respect to cases commenced under this title before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of this title.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after , see section 552(a) of Pub. L. 98–353, set out as a note under section 101 of this title.