BILL ANALYSIS Ó
AB 1074
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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
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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.)
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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
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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
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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 of involved in
providing 9-1-1 service, shall not be liable for any claim civil
damage or loss caused by an act or omission of the company,
business, or individual 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 claim , damage or loss constituted gross
negligence, wanton or willful misconduct recklessness , or
intentional misconduct.
(b) For purposes of this section:
(1) "Public safety agency " means a public safety agency as is
defined by in accordance with the 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).
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(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