BILL ANALYSIS Ó AB 1074 Page 1 Date of Hearing: May 3, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 1074 (Fuentes) - As Introduced: February 18, 2011 As Proposed to be Amended SUBJECT : IMMUNITY FROM LIABILITY: 9-1-1 EMERGENCY COMMUNICATIONS SERVICES KEY ISSUE : SHOULD COMPANIES THAT PROVIDE 9-1-1 EMERGENCY COMMUNICATIONS NETWORK SERVICES UNDER CONTRACT OR SUBCONTRACT WITH THE STATE BE PROTECTED FROM SPECIFIED CIVIL LIABILITY, AS TELECOMMUNICATIONS COMPANIES ARE CURRENTLY PROTECTED? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This bill seeks to immunize from ordinary negligence liability certain activities of any company that provides 911 communication services under contract or subcontract to the state. Regulated telecommunications companies that have traditionally provided telephone connection to 911 services are currently not responsible for certain negligence under the terms of a PUC tariff. Supporters argue that this bill is necessary to encourage business partnerships between regulated telecommunications companies and other companies in the provision of new "Next Generation" 911 services that are expected to allow 911 text messaging and email connections. The association of 911 network service administrators initially opposed the bill; however, their concerns are believed to be addressed by the author's proposed amendments. SUMMARY : Extends certain immunities to specified companies in the provision of 9-1-1-emergency assistance services. Specifically, this bill : 1)Provides that a utility or other retail or wholesale service provider of telecommunications service or other service that is under contract with the state, or is under subcontract approved by the state with a utility or other entity that is under contract with the state, for the provision of 9-1-1 AB 1074 Page 2 service, shall not be liable for any civil damage or loss caused by an act or omission in the design, development, installation, maintenance, or provision of 9-1-1 service pursuant to the contract, unless the act or omission that proximately caused the damage or loss constituted gross negligence, wanton or willful misconduct, or intentional misconduct. 2)Provides that this provision shall not modify any existing service tariff provision, but shall prevail if any service tariff provision conflicts with this section. 3)Provides that this provision shall not be construed to modify the liability of any manufacturer, distributor or other person arising from a claim, damage or loss related to the operation or performance of an end-user device. EXISTING LAW : 1)Generally provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. (Civil Code section 1714.) 2)Provides pursuant to PUC tariff that a utility shall not be liable for civil damages, whether in contract, tort or otherwise, to any person, corporation, or other entity for any loss or damage caused by any Utility act or omission in the design, development, installation, maintenance, or provision of 9-1-1 Service other than an act or omission constituting gross negligence or wanton or willful misconduct. The Utility shall not be liable or responsible for any indirect, incidental, or consequential damages associated with the provision of 9-1-1 Service, including, for example and without limitation, when a call originates from a system or line which makes the provision of specific location information impossible to provide for technical reasons, and when a failure or interruption in 9-1-1 Service is due to the attachment of any equipment by a customer to Utility facilities. (PUC tariff.) AB 1074 Page 3 3)Provides pursuant to federal law that a wireless carrier, IP-enabled voice service provider, or other emergency communications provider, and their officers, directors, employees, vendors, and agents, shall have immunity or other protection from liability in a State of a scope and extent that is not less than the scope and extent of immunity or other protection from liability that any local exchange company, and its officers, directors, employees, vendors, or agents, have under Federal and State law (whether through statute, judicial decision, tariffs filed by such local exchange company, or otherwise) applicable in such State, including in connection with an act or omission involving the release to a PSAP, emergency medical service provider or emergency dispatch provider, public safety, fire service or law enforcement official, or hospital emergency or trauma care facility of subscriber information related to emergency calls, emergency services, or other emergency communications services. (47 U.S.C. Section 615a.) 4)Further provides pursuant to federal law that a person using wireless 9-1-1 service, or making 9-1-1 communications via IP-enabled voice service or other emergency communications service, shall have immunity or other protection from liability of a scope and extent that is not less than the scope and extent of immunity or other protection from liability under applicable law in similar circumstances of a person using 9-1-1 service that is not via wireless 9-1-1 service, IP-enabled voice service, or other emergency communications service. (47 U.S.C. Section 615a.) 5)Likewise provides pursuant to federal law that in matters related to 9-1-1 communications via wireless 9-1-1 service, IP-enabled voice service, or other emergency communications service, a PSAP, and its employees, vendors, agents, and authorizing government entity (if any) shall have immunity or other protection from liability of a scope and extent that is not less than the scope and extent of immunity or other protection from liability under applicable law accorded to such PSAP, employees, vendors, agents, and authorizing government entity, respectively, in matters related to 9-1-1 communications that are not via wireless 9-1-1 service, IP-enabled voice service, or other emergency communications service. (47 U.S.C. Section 615a.) COMMENTS : The author states that this bill is needed to address AB 1074 Page 4 the following issue: All entities associated with responding to emergencies, including providers of 9-1-1 service, have immunity from ordinary negligence. Without this protection, no entity, whether a public agency or a private company, could assume the risk of liability associated with responding to an emergency. Emergency responders have immunity through statute, while telephone corporations have immunity through tariffs filed with the Public Utilities Commission. NG 911, however, will involve third-party providers that are neither emergency responders nor telephone corporations, and these third-parties will be deterred from providing emergency-related services if they cannot also have immunity from ordinary negligence. The leading examples are companies that maintain mapping databases and specialize in converting X/Y map coordinates into an address, which is a vital function in locating wireless callers who cannot give their location. The purpose of this bill is to extend the immunity from ordinary negligence that telephone companies have in their tariffs to other service providers when they are functioning as a part of the 9-1-1 emergency system. Under AB 1074, this immunity would attach only when a third party is actively participating in connecting a caller to a 9-1-1 operator, and not generally to the company or its other activities. This Bill Is Intended To Create Additional Incentives To Develop Internet-Based 911 Services. Connection to the 9-1-1 communications network is currently only by telephone. As new devices like text messages and e-mail have become available, the technological opportunity exists to include accessibility for those devices in so-called "Next Generation 911" (NG 911). Under NG 911, it is envisioned that all connections to a Public Safety Answering Point (PSAP) will be made via the Internet, whether from traditional landlines, wireless cellular telephones, email or text messaging. This Internet based system will also allow for additional services as well, most notably converting location data from a GPS-enabled cell phone into a street address that can be provided to the 9-1-1- operator. In support of the bill, Verizon states that a private company called Intrado has the best location-based address database in the U.S., and Verizon wants to partner with this company to provide AB 1074 Page 5 the address of a cell phone user calling 911 who cannot give an address. Regulated telecommunications companies are protected from certain civil liability by PUC tariff and pursuant to federal law. Supporters wish to extend protection from liability to businesses like Intrado, when involved in providing 9-1-1 service - that is, actually performing a function that connects a caller to a 9-1-1 operator - through a company like Verizon that is under contract with the state. According to supporters, no single company can provide all the services needed for NG 911, and the needed technology companies will be reluctant to risk the potentially unlimited liability associated with 911 services without the immunity from ordinary negligence that Verizon has. The regulated telecommunications companies like Verizon, however, will continue to be the entities that contract with the state and remain responsible for the quality of the 9-1-1 service provided regardless of who they contract with. Author's Clarifying Amendments. To better clarify the intent of the bill and respond to opposition concerns, the author appropriately proposes to amend the bill as follows: 1714.55. (a) A utility or other retail or wholesale service provider of telecommunications service or other service that is under contract with the state, or is under subcontract approved by the state with a utility or other entity that is under contract with the state, for the provision ofinvolved in providing9-1-1 service, shall not be liable for anyclaimcivil damage or loss caused by an act or omissionof the company, business, or individualin the design, development, installation, maintenance, or provision of 9-1-1 service pursuant to the contract, unless the act or omission that proximately caused theclaim, damage or loss constituted gross negligence, wanton or willful misconductrecklessness, or intentional misconduct. (b) For purposes of this section: (1) "Public safety agency " means a public safety agency asisdefined byin accordance withthe Warren-911-Emergency Assistance Act (Article 6 (commencing with Section 53100) of Chapter 1 of Part 1 of Division 2 of Title 5 of the Government Code). AB 1074 Page 6 (2) "9-1-1 service" means a system involved in either connecting users to a public safety agency, or in providing data, including, but not limited to, the location of the user, to a public safety agency for emergency services pursuant to the Warren-911 Emergency Assistance Act. (c) This section shall not be construed to modify service tariff provisions. This section shall prevail if any service tariff provision conflicts with this section. (d) This section shall not be construed to modify the liability of any manufacturer, distributor or other person arising from a claim, damage or loss related to the operation or performance of an end-user device. REGISTERED SUPPORT / OPPOSITION : Support AT&T Civil Justice Association of California Verizon Opposition (prior to proposed amendments) California Chapter of National Emergency Number Association Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334