BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 1097         Hearing Date:    June 15,  
          2015
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          |Author:   |Holden                                                |
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          |Version:  |May 11, 2015                                          |
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          |Urgency:  |No                     |Fiscal:    |No               |
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          |Consultant|Janelle Miyashiro                                     |
          |:         |                                                      |
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                 Subject:  Alarm companies: electronic transactions.


          SUMMARY:  Authorizes alarm companies to distribute contracts to  
          customers by electronic means.  

          Existing law:
          
          1)Establishes the Alarm Company Act, which provides for the  
            licensure and regulation of alarm company operators and the  
            certification and registration of alarm company employees.   
            (Business and Professions Code (BPC) § 7590)

          2)States that every agreement by an alarm company, including but  
            not limited to lease agreements, monitoring agreements, and  
            service agreements, must be in writing.  Additionally, each  
            agreement must contain:

             a)   The name business address, business telephone number,  
               and the license number of the alarm company operator or  
               registration number of any alarm agent who solicited or  
               negotiated the agreement.

             b)   Approximate dates when the work will begin and when it  
               will be completed.

             c)   A description of the work being done and materials used.

             d)   A disclosure that the alarm company operators are  







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               licensed by the Bureau of Security and Investigative  
               Services (Bureau) in the Department of Consumer Affairs  
               (DCA).

             e)   A description of the alarm system and its major  
               components.

             f)   Other matters agreed to by the parties in the contract.

             g)   Statement that upon completion, the alarm company will  
               teach the purchaser in the system's proper use.

             h)   Payments and payment schedules for initial residential  
               sales and lease agreements totaling over $250 over the time  
               period fixed by the agreement. (BPC § 7599.54)

          3)Prohibits a licensee from making any untrue or misleading  
            statements in connection with the business of the licensee.   
            (BPC § 7599.55)

          4)Mandates any licensee, qualified certificate holder, firearms  
            qualification card holder, or registrant to notify the Bureau  
            within 30 days of any change or residence or business address.  
             (BPC § 7599.59)

          5)Provides that an electronic contract, record, or signature can  
            satisfy a written contract or record.  (Civil Code (CC) §  
            1633.7)

          6)Defines "electronic" as relating to technology and having  
            electrical, digital, magnetic, wireless, optical,  
            electromagnetic or similar capabilities.  (CC § 1633.2(e))

          7)Defines "electronic record" as a record created, generated,  
            sent, communicated, received, or stored by electronic means.   
            (CC § 1633.2(g))

          8)Defines "electronic signature" as an electronic sound, symbol,  
            or process attached to or logically associated with an  
            electronic record and executed or adopted by a person with the  
            intent to sign the electronic record.  (CC § 1633.2(h))

          9)Defines "home solicitation contract or offer" to mean any  
            contract or offer which is subject to approval for the sale,  








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            lease, or rental of goods and/or services made at other than  
            appropriate trade premises in an amount of twenty-five dollars  
            or more.  (CC § 1689.5(a))

          10)Defines "appropriate trade premises" as the premises where  
            either the owner or seller normally carries out business or  
            where goods are normally offered or exposed for sale.  (CC §  
            1689.5(b))

          11)A contract may be conducted by electronic means based on the  
            context and surrounding circumstances of the agreement.  A  
            party that agrees to conduct a transaction by electronic means  
            may refuse to conduct other transactions by electronic means.   
            (CC § 1633.5)

          12)States that a buyer has the right to cancel a home  
            solicitation contract or offer until midnight of the third  
            business day after the day on which the buyer signs an  
            agreement or offer to purchase.  (CC § 1689.6)

          13)States that a home solicitation contract or offer must be: 

             a)   Written in the same language as principally used in the  
               oral sales presentation.

             b)   Dated & signed by the buyer.

             c)   Contain, in conspicuous proximity to the space reserved  
               for the buyer's signature, the following statement: "You,  
               the buyer, may cancel this transaction at any time prior to  
               midnight of the third business day after the date of this  
               transaction.  See the attached notice of cancellation form  
               for an explanation of this right."  (CC § 1689.7)
          14)Excludes certain transactions from being conducted  
            electronically, including the creation and execution of wills,  
            codicils, health care powers of attorney, or testamentary  
            trusts.  (CC § 1633.3)

          This bill:  

          1) Authorizes alarm company salespersons to use electronic  
             contracts for service in lieu of paper contracts at the  
             discretion of the customer.









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          2) Extends the provisions of the Uniform Electronic Transactions  
             Act (UETA) to cover transactions conducted by persons  
             licensed, certified, or registered under the Alarm Company  
             Act.

          3) Requires electronic contracts for services or other  
             activities authorized by the Alarm Company Act to comply with  
             specified cancellation periods, statements, and disclosures  
             that apply to home solicitation contracts.

          4) Authorizes any signatures, disclosures, and documents  
             required by these home solicitation contracts to be provided  
             and transmitted by electronic means.

          
          FISCAL  
          EFFECT:  None.  This bill has been keyed "nonfiscal" by  
          Legislative Counsel.  

          
          COMMENTS:
          
          1. Purpose.  This bill is sponsored by  ADT Security Services  .   
             According to the Author, "AB 1097 allows alarm company  
             salespeople to use electronic contracts, at the discretion of  
             the customer."  

             The Author states that, "Although most businesses and  
             individuals selling alarm systems are legitimate, some use  
             deceptive tactics as a core component of their sales  
             practices and often target the elderly.  With paper contracts  
             it is virtually impossible to know who signed a contract,  
             when they signed it, and whether or not copies of the  
             contract and notice of cancellation were actually delivered.   
             With e-contracts, however, it is possible to see when the  
             actual customer logged into the e-contract system, reviewed  
             and signed the contract, and exactly when and whether the  
             contract and notices were electronically delivered to the  
             customer."

          2. Background.  The Uniform Electronic Transaction Act (UETA)  
             was first drafted by the National Conference of Commissioners  
             on Uniform State Laws (NCCUSL) in 1999 to help set  
             standardized state rules for creating electronic contracts  








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             (e-contracts) that would provide the same legal obligation as  
             traditional paper transactions.  Included in these  
             standardized rules are specific definitions to e-contract  
             terms in relation to traditional contractual agreements.  The  
             UETA defines an "electronic record" as a contract or other  
             type of record created, generated, communicated, received, or  
             stored by electronic means.  An "electronic signature" is  
             defined by the UETA as an electronic sound, symbol, or  
             process attached to or logically associated with a contract  
             or record and executed or adopted by a person with the intent  
             to sign the record.
             
             There are certain transactions that are not covered under the  
             UETA.  These include wills, trusts, codicils to a will,  
             health care powers of attorney, transactions governed by the  
             U.C.C, the Uniform Computer Information Transactions Act  
             (UCITA), and any state law exempting application.  When the  
             UETA was released, states had the option of adopting the  
             entire UETA law or part(s) of the proposed provisions in the  
             act.  
             
             In 1999, California became one of the first states to adopt  
             the UETA, giving 
             e-contracts and signatures the same legal standing as  
             traditional paper contracts.  In an effort to further protect  
             consumers, California additionally exempted in-home sales  
             from the UETA.  Almost any consumer transaction $25 or more  
             which takes place in the buyer's home or away from other  
             appropriate trade premises constitute an in-home sale.   
             Additionally, in 2010, California passed the Consumer's  
             Rights to Cancel Home Solicitation Contracts through the Home  
             Solicitation Sales Act.  This Act gives consumers the ability  
             to cancel a sale or contract made through an in-home sale  
             without penalty or obligation if the consumer gives a proper  
             notice within three business days.  With this additional UETA  
             exemption in the use of e-contracts and the cancellation  
             provisions in the Home Solicitation Sales Act, in-home sales  
             vendors are currently required to continue leaving a paper  
             copy of the contract and two copies of the notice of  
             three-day right of recession with the consumer at the time of  
             the sale.  

             However, advancements in technology have rendered these paper  
             contracts including in-home sales paper contracts nearly  








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             obsolete.  Paper contracts are easily misplaced and can be  
             damaged over time.  E-contracts offer added consumer  
             protection properties because they are reproducible, and  
             metadata (data that summarizes basic information about other  
             data) showing when the contract and other documents were  
             signed, emailed, and even opened, can be subpoenaed.  Many  
             in-home vendors use tablet devices to help assess customer  
             needs and discuss contract terms, an already common practice  
             that the Author asserts will further reduce environmental  
             impact.  This common practice helps salespersons preserve an  
             electronic copy of the document for future reference, which  
             can be emailed to customers for their own files, providing  
             greater transparency into the contracting process.  The  
             Author further argues that this transparency with the  
             adoption of e-contracting will give the state additional  
             enforcement tools to ensure that the sale was a voluntary  
             transaction with the fulfillment of all notice requirements.

             This bill would authorize alarm companies in California to  
             distribute electronic contracts without requiring a separate  
             paper copy to be generated at the discretion of the customer.  
              Consumers who still wish to receive a paper copy of their  
             contract will still maintain this option.

          3. Prior/Related Legislation.   AB 1131  (Dababnah, 2015) of the  
             current legislative session, would authorize additional  
             persons to send life insurance records by electronic  
             transmission by providing that an insurer, agent, broker, or  
             any other person licensed by the Department of Insurance may  
             send electronic records.
             (  Status  : This bill is waiting for a hearing in Senate  
             Insurance Committee.)

              SB 536  (Berryhill, 2014) is identical to this bill except  
             that SB 536 would have additionally excluded contracts for  
             services or other activities authorized by the Alarm Company  
             Act from the definition of a home solicitation contract.  
             (  Status  : This bill was held in Assembly Rules Committee.)

          4. Arguments in Support.  Writing in support of the bill,  ADT  
             Security Services  states, "We believe it is time to update  
             California statute to allow companies in the state to fully  
             utilize e-contracts and to electronically send (email) the  
             required contract and notice of rescission documents to the  








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             customer, without requiring that wasteful paper copies also  
             be generated and left behind.  Of course, electronic  
             contracting is voluntary, and consumers must first consent."
             
             The  California Alarm Association (CAA)  writes, "Electronic  
             contracts provide better verification on whom and when a  
             contract was signed, as well as when the contract and notice  
             of cancelation are received.  A date and time stamp appears  
             on emails, verifying when they are sent.  It is also possible  
             to see when the customer has logged into the e-contract  
             system.  AB 1097 would still allow the customer to receive a  
             paper contract.  However, as mentioned above, an electronic  
             contract allowed under this bill will provide additional  
             consumer protections."

             The  California Cable & Telecommunications Association (CCTA)   
             writes, "The adoption of this proposal would result in  
             greater convenience for alarm service customers by providing  
             an immediate electronic contract access to consumers,  
             providing for greater consumer protections and verification  
             of customer authorization, and confirming that customers  
             understand and review their right to cancel service."

          
           NOTE  :  Double-referral to Senate Committee on Judiciary (Second).
          

          SUPPORT AND OPPOSITION:
          
           Support:  

          ADT Security Services (Sponsor)
          California Alarm Association (CAA)
          California Cable & Telecommunications Association (CCTA)

           Opposition:  

          None on file as of June 9, 2015.

                                      -- END --
          











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