BILL ANALYSIS Ó
SB 1160
Page 1
Date of Hearing: June 25, 2012
ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
Steven Bradford, Chair
SB 1160 (Padilla) - As Amended: June 19, 2012
SENATE VOTE : 32-0
SUBJECT : Communications: Service interruption.
SUMMARY : Prohibits a government entity, and a provider of
communication service acting at the request of a government
entity, from intentionally interrupting communication service
for the purpose of protecting public safety or preventing use of
the service for an illegal purpose except pursuant to a court
order based on a finding of probable cause.
EXISTING LAW :
1)Makes it a misdemeanor for an agent, operator, or employee of
any telegraph or telephone office to willfully refuse to
transmit a message unless the customer bill is not paid or the
message encourages treason or other unlawful acts or
facilitates escape of a criminal.
2)Authorizes law enforcement to order a cut to a telephone line
to prevent communications where there is probable cause that a
person is holding hostages, committing a crime, or resisting
arrest through use of force.
3)Decisions of the Federal Communications Commission (FCC)
require specified providers of communications service,
including landline, wireless, and certain Internet-based
services, to provide customers 911 access to emergency
services.
FISCAL EFFECT : Unknown.
COMMENTS : According to the author, the purpose of this bill is
to protect public safety by ensuring 911 access to emergency
services and to preserve a free and open communications system
that is critical to democracy.
1)Background : For many decades landline telephone service was
the only means of
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communication and calling 911 for emergency assistance. The
evolution of technology has brought to the forefront a greater
use of mobile wireless and Voice over Internet Protocol (VoIP)
services as a primary means of communication for voice calls,
texting, email, Internet access, and other uses, including
access to 911. It has been estimated by the FCC that 70% of all
911 calls now originate from wireless phones.
In California Public Utilities Commission (PUC) Decision No.
71797 (1966), the PUC established a procedure that must be
followed before "any communications utility operating under the
jurisdiction of the commission" may refuse service to an
applicant, or discontinue service to a subscriber, based on an
assertion by law enforcement that the service is or will be used
for unlawful purposes. This is commonly known as "Tariff Rule
31." Importantly, this tariff rule applies only to refusals of
service/disconnections requested by law enforcement; it doesn't
apply to company-initiated disconnections for fraud or other
illegal activity made pursuant to applicable tariffs, customer
contracts, and internal practices to prevent network harm.
The PUC implemented Tariff Rule 31 following the California
Supreme Court's 1966 decision in Sokol v. Public Utilities
Commission (1966) 65 Cal.2d 247, which struck down a prior PUC
rule on this matter. The Sokol case held that "ÝWhatever] new
procedure is hereafter devised," it "must at a minimum require
that the police obtain prior authorization to secure the
termination of service by satisfying an impartial tribunal that
they have probable cause to act, in a manner reasonably
comparable to a proceeding before a magistrate to obtain a
search warrant. In addition, after service is terminated the
subscriber must be promptly afforded the opportunity to
challenge the allegations of the police and to secure
restoration of the service." Sokol, 65 Cal.2d at p. 256.
Following Sokol, the PUC undertook further proceedings to modify
the rule consistent with this standard. The PUC was then sued
again by an aggrieved person asserting "extensive"
constitutional errors including violation of free speech, due
process, and unlawful taking of property. In Goldin v. Public
Utilities Com., 23 Cal. 3d 638 (1979), the California Supreme
Court held that Tariff Rule 31 needed to "be modified in certain
respects in order to insure the full future protection of
constitutional rights to due process of law." Specifically,
Goldin required the PUC to modify the rule to provide that the
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magistrate must find that there is probable cause to believe
"not only that the subject telephone facilities have been or are
to be used in the commission or facilitation of illegal acts,
but that the character of such acts is such that, absent
immediate and summary action in the premises, significant
dangers to public health, safety, or welfare will result."
Goldin, 23 Cal. 3d at 664-65. Otherwise, Goldin found Tariff
Rule 31 to be generally consistent with the requirements of
Sokol decision and the requirements of applicable principles of
state and federal constitutional law. Goldin, 23 Cal. 3d at
670. The PUC amended Tariff Rule 31 to implement the
modifications required under Goldin. See Decision 91188,
adopted January 8, 1980.
1)BART goes too far? : In August 2011, officials of the Bay Area
Rapid Transit district
temporarily disabled wireless service in several stations to
interfere with anticipated political demonstrations protesting
the fatal shooting of a passenger by BART police. Thousands of
BART commuters lost the ability to utilize wireless services in
the affected stations for the purpose of public safety.
In December 2011, the BART board of directors adopted the
nation's first policy specifying when mobile wireless service
can be shut down. The new policy allows BART to interrupt cell
service if BART officials determine there is strong evidence of
imminent unlawful activity that threatens public safety,
substantial disruption of public transit services, or
destruction of BART property, among other considerations. The
policy does not require any court or other review of BART
officials' determination that a shutdown is justified.
2)FCC action : The FCC is dedicated to preserving the
availability and openness of
communications and networks. Wireless communications serve
vital free expression interests and are critical to our nation's
economy. On March 1, 2011, the FCC issued a Public Notice
asking for public comment on many issues related to intentional
interruptions of wireless service by, or at the request of, a
government authority for the purpose of ensuring public safety.
The FCC requested comments on the legal and policy constraints
on service interruption posed by the First Amendment, federal
law governing communications, and other provisions of federal
and state law. The FCC notes that "we are concerned that there
has been insufficient discussion, analysis, and consideration of
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the questions raised by intentional interruptions." The FCC
stated that public input will inform whether- and if so, what -
policy guidance may be appropriate regarding wireless service
interruptions.
3)Regulatory oversight and public safety : The PUC has the broad
authority to regulate utility
safety pursuant to the California Constitution as well as the
Public Utilities Code. SB 1160 does not intend to adversely
impact the PUC's safety authority. It does not apply to service
disconnection or interruption authorized by law or regulation
for specified purposes such as for failure of a subscriber to
pay a bill, maintenance and repair, as directed by the PUC
because of fraudulent business activity or misuse of automated
dialing-announcing devices, among others. The author contends
that this bill aims to be consistent with the FCC's proceeding
which is seeking to develop federal guidance on
government-initiated shutdown of wireless service.
Moreover, this bill seeks to ensure public safety by focusing on
providers of communication service that are required to provide
their customers 911 access to emergency service. Public opinion
is split on whether the government and law enforcement should
have unchecked authority to initiate a localized or citywide
wireless shutdown for public safety purposes. Supporters of
BART's action to interrupt wireless service recognize that in
certain emergency situations a service disruption may be
warranted to prevent or stop a life-threatening emergency.
Critics disagree with BART's actions and claim that government
directed wireless shutdowns would infringe upon the First
Amendment rights to protected speech and impose unconstitutional
prior restraints on speech. SB 1160 would preempt a
governmental entity, provider of communications service, or any
official acting at the request of a governmental entity from
interrupting communications service for the purpose of
protecting public safety or preventing the use of communications
for an illegal purpose unless a signed court order is obtained.
It also makes current law technology-neutral to apply to any
communications service that interconnects with the public
switched telecommunications network and is required by the FCC
to provide users 911 access to emergency services.
The other provisions in this bill relating to the First
Amendment and exigent circumstances are not germane to the
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jurisdiction of this committee and will be vetted in another
policy committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union (ACLU)
American Federation of State, County and Municipal Employees
(AFSCME)
California Cable & Telecommunications Association (CCTA)
California Chapter of the National Emergency Number Association
(CALNENA)
Opposition
None on file.
Analysis Prepared by : DaVina Flemings / U. & C. / (916)
319-2083