BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1160
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          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