BILL ANALYSIS Ó
AB 1407
Page 1
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1407
(Atkins) - As Amended April 22, 2015
As Proposed to be Amended
SUBJECT: DOMESTIC VIOLENCE: DIVISION OF WIRELESS TELEPHONE
PLANS
KEY ISSUE: IN ORDER TO BETTER SUPPORT AND PROTECT VICTIMS OF
DOMESTIC VIOLENCE AS THEY LEAVE THEIR ABUSERS, SHOULD THESE
VICTIMS, THROUGH A DISCRETIONARY COURT ORDER TO THE WIRELESS
SERVICE PROVIDER, BE ABLE TO KEEP THEIR CELL PHONES AND THEIR
CHILDREN'S CELL PHONES, EVEN IF THEIR ABUSER HOLDS THE ACCOUNT
WITH THE WIRELESS PROVIDER?
SYNOPSIS
Today, nearly everyone has a cell phone and that phone provides
critical access to family, friends and support services. Often
one person is the accountholder for all phones in the household,
but if the accountholder is also a batterer, he or she can use
that status to control the victim's cell phone, monitor calls
and track the victim's whereabouts. Sponsored by WEAVE, this
bill seeks to better support victims of domestic violence by
allowing a court to direct the wireless service provider to give
them control over their own phones and their children's phones.
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This bill is supported by, among others, the California Judges
Association, the California Catholic Conference, law enforcement
groups, legal aid organizations, and the major wireless service
providers. There is no known opposition.
SUMMARY: Effective July 1, 2016, allows a court in a domestic
violence proceeding, to direct a wireless telephone service
provider (wireless provider) to transfer wireless phone numbers
and devices. Specifically, this bill:
1)Allows a court, beginning July 1, 2016, in any Domestic
Violence Prevention Act proceeding, after notice and a
hearing, to issue an order directing a wireless telephone
service provider to transfer billing responsibility and rights
to a wireless phone number(s) to a requesting party, if the
requesting party is not the accountholder. Requires that the
order be made to the wireless provider, served as specified,
and contain specified information.
2)Requires the wireless provider, when it cannot operationally
or technically effectuate the order, to notify the requesting
party within 72 hours. Provides examples of such
circumstances, including where the accountholder has already
terminated service, where there are differences in network
technology that prevent functionality of the device, and where
there are geographic or other limitations on network or
service availability.
3)Provides that a wireless provider, as part of the transfer of
billing responsibility, is not precluded from applying to the
requesting party any routine and customary requirements for
account establishment, including but not limited to
identification, financial information and customer
preferences.
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4)Provides that no cause of action will lie against any wireless
provider for actions taken in accordance with a court order
issued pursuant to #1), above.
5)Requires the Judicial Council, by July 1, 2016, to develop any
necessary forms or rules.
6)Declares legislative intent that: a) for many victims of
domestic violence their cell phone is their lifeline to
community resources, life-saving services and their support
network; and b) allowing victims of domestic violence to
retain an existing wireless phone number and access to contact
and other information contained in that phone is important for
the safety and emotional support of the victim, which could be
a problem if the victim is not the accountholder for the cell
phone.
EXISTING LAW allows a court under the Domestic Violence
Protective Act (DVPA), after notice and a hearing to, among
other things, issue a restraining order, exclude the restrained
party from a dwelling, make custody determinations, order a
party to pay child support, and order the restrained party to
participate in a batterer's program. (Family Code Sections 6340
et seq.)
FISCAL EFFECT: As currently in print this billed is keyed
fiscal.
COMMENTS: Today, nearly everyone has a cell phone and that
phone provides critical access to family, friends, and support
services. Often one person is the accountholder for all phones
in the household, but if that accountholder is also a batterer,
he or she can use that status to control the victim's cell
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phone, monitor calls and track the victim's whereabouts. This
bill seeks to better support victims of domestic violence by
allowing a court to direct the wireless service provider to give
them control over their own phones and their children's phones.
In support of the bill, the author writes:
Current law provides no mechanism for victims of domestic
violence . . . to break a wireless telephone shared family
plan contract when the abuser . . . is the primary
accountholder. Allowing these individuals to retain use of an
existing wireless telephone number and access to their
contacts and other information stored within the phone is
important to the individual's safety and emotional support.
Sponsor WEAVE adds:
This bill is necessary for several reasons. First it halts
GPS tracking and stalking of a domestic violence victim. When
the abuser is the account holder he has access to information
about the victim's movements and the ability to review call
activity he or she can continue to harass and track the
victim. Second it will prevent the account holder from
controlling the account and suspending service which
interferes with the victim's ability to use this lifeline to
the community resources, life-saving services and support
network they need to leave their abuser.
For many victims who are preparing to leave their abusive
relationships their cell phone is a vital tool. With it they
are able to communicate with their support network, access the
internet in privacy and determine their next steps to safely
leave their abuser. Access to their phone ensures that they
are able to make appointments, find safe shelter and
communicate with counselors or legal advocates.
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Assembly Bill 1407 would resolve this safety concern by
allowing the court to issue an order directing the wireless
carrier to separate the contract, this eliminating the ability
of the perpetrator to identify the whereabouts of the victim.
Assembly Bill 1407 protects victims and their children and
decreases the stress of changes that occur during disruption
or relocation of families due to domestic violence.
Domestic Violence Remains a Serious and Widespread Problem for
Victims and Families Across California. Domestic violence is a
serious criminal justice and public health problem most often
perpetrated against women. (Extent, Nature and Consequences of
Intimate Partner Violence: Findings from the National Violence
against Women Survey, U.S. Department of Justice (2001).)
Domestic violence continues to be a significant problem in
California. In 2005, the Attorney General's Task Force on
Domestic Violence reported that:
The health consequences of physical and psychological domestic
violence can be significant and long lasting, for both victims
and their children. . . . A study by the California Department
of Health Services of women's health issues found that nearly
six percent of women, or about 620,000 women per year,
experienced violence or physical abuse by their intimate
partners. Women living in households where children are
present experienced domestic violence at much higher rates
than women living in households without children: domestic
violence occurred in more than 436,000 households per year in
which children were present, potentially exposing
approximately 916,000 children to violence in their homes
every year.
(Report to the California Attorney General from the Task Force
on Local Criminal Justice Response to Domestic Violence, Keeping
the Promise: Victim Safety and Batterer Accountability (June
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2005) (footnotes omitted).)
Allowing Victims of Domestic Violence and Their Children to Keep
Their Own Phones Provides Them With Important, Real World
Protections. Like all phones, cell phones, allow the user to
call family and friends and, if necessary, make emergency calls.
But cell phones, particularly smart phones, do so much more
than old landlines. They store the user's address books, often
without any backup, whether electronic or hard copy. They
enable texting, and if they are smart phones, they allow email
communication and full Internet access. A cell phone's GPS also
lets the user locate the nearest police station, hospital or ATM
machine. Without access to their cells phones, individuals may
have difficulty keeping in touch with family and friends, be
unable to quickly locate support services in their area, and
unable to easily find their way to those services.
Allowing domestic violence victims to keep their phone provides
them with important protections. First, in an emergency
situation, they can use their phone to call the police. Second,
they can use their phone to stay in touch with family and
friends, even if they are forced to flee on short notice. This
will help ensure they have a support network, which is so
critical for those escaping abuse. They can also use their
phone to find community resources and secure safe housing, as
well as potential new job opportunities.
Additionally, if the phone is not transferred, the accountholder
may be able to discover with whom the victim has been
communicating. Moreover, the accountholder can relatively
easily track the location of the victim in real time through the
phone's GPS, and stalk him or her with impunity. While there
are multiple ways to physically and electronically monitor a
person's location, being the legal owner of a phone allows for
greater possible abuse. Transferring the phone to the victim
will better protect him or her from electronic monitoring.
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Parties to Dissolution and Child Custody Cases Could Also
Benefit by Being Able to Keep Their Phones and Their Children's
Phones. This bill, as currently in print, covers not only
domestic violence cases but also dissolution and child custody
cases. However, as proposed to be amended, this bill will only
apply to domestic violence cases. With this narrowing of the
bill, the author ensures that those most vulnerable individuals
- domestic violence survivors finding the courage to leave a
potentially life threatening situations and their children - are
protected. It should also reduce costs and ease any burden on
telephone companies.
However, this amendment may leave some families without legal
recourse. Courts, as part of a dissolution case, have the
ability to divide property and a court, in a dissolution case,
could order the accountholder spouse to transfer phones and
phone numbers to the other spouse. However, that order is not
one made directly to the wireless service provider and could, in
some instances, prove difficult to enforce. Moreover, a custody
case can also arise under the Uniform Parentage Act, and not as
part of a dissolution case. For those families, the court may
make custody and child support orders, but has no ability to
divide the parents' property. Thus, if the noncustodial parent
is the accountholder and chooses not to cooperate, the custodial
parent may not be able to take his or her phone and his or her
children's phones.
Process Outlined in the Bill Protects Parties Rights. Under the
process set forth in the bill, as proposed to be amended, a
party to a DVPA action can, through a noticed motion and
hearing, petition for separation of the party's telephone
number(s) and device(s) from the accountholder. By preventing
use of this new order at the temporary restraining order stage,
this bill ensures that the accountholder will have full notice
and an opportunity to be heard. If the court chooses to issue
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the transfer directive to the wireless provider, the requesting
party is required to serve the wireless provider agent for
service of process listed with the California Secretary of
State. That order must include the contact information for the
requesting party, but, in order to shield the victim's
information from the abuser, that contact information cannot be
provided to the accountholder.
In addition, the bill makes clear that upon transfer of billing
responsibility, all costs for the phones transferred, including
monthly service fees and costs of the mobile devices associated
with the transferred phone numbers, must be removed from the
accountholder's bill and billed to the requesting party, who
will then be responsible for the payment of those costs.
This Bill Also Protects Wireless Phone Service Providers. While
wireless telephone service providers may have an obligation to
comply with a court order directing division of phones, they are
protected from practical, financial and legal concerns in
several key ways. First, and foremost, the bill establishes
immunity to suit for any action that the wireless provider, or
its officers, employees or agents, may take "in accordance with
the terms of" an order to transfer billing responsibility and
rights for the telephone numbers and devices. Thus, wireless
providers are broadly protected against litigation by the
accountholder, the requesting party, or anyone else.
Second and as proposed to be amended, the bill allows a wireless
provider to not comply with a court directive to transfer phones
if the company cannot "operationally or technically effectuate
the order." In these circumstances, the provider is still
required to notify the requesting party within 72 hours that the
company cannot comply with the court directive. The bill
provides examples of these possible noncompliance circumstances,
including where the accountholder has already terminated
service, where differences in technology prevent the device from
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functioning on the phone network, and where there are geographic
or other limitations on network or service availability. While
the bill as amended no longer includes the word "impossible," it
still makes clear that a wireless provider can only not follow
the court order if the provider cannot, because of strictly
operational or technical reasons, comply.
Third, the bill makes clear that the requesting party is
responsible for all financial costs of the phone, including
monthly service costs and any costs associated with the phones
themselves. While the order directs the phone company to make
the transfer, the requesting party must still apply for a new
account for the phone(s) like any new customer. If the
requesting party does not have the credit worthiness to get a
typical monthly service plan, he or she may have to switch to a
prepaid plan. Moreover, as proposed to be amended and in order
to comply with federal preemption concerns, the wireless
provider is not in any way limited from any fees that it may
charge to the requesting party.
As a result of these protections in the bill, the wireless
service providers should be protected from any negative
consequences of these transfers and may even end up ahead with
additional customers.
ARGUMENTS IN SUPPORT: Writing in support of the bill, the
California Judges Association states that "it is important that
a victim be allowed to retain access to her or his existing
wireless telephone number and other information or contacts that
are associated with that number in a manner that does not put
the victim at risk for contact via billing address or other
information contained within the account information, and that
allows the victim to sever that number from an existing shared
plan."
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Legal Service of Northern California notes that some of its
clients have been unable to access their cell phones because
they were not the accountholders: "This has limited clients'
ability to communicate with us as their lawyers and with social
service providers with whom communication is necessary to obtain
vital benefits and services. This limited ability to
communicate has delayed services only because of limited access
to telephone service."
The California Catholic Conference and law enforcement groups
add that this bill is vital to an individual's safety and
provides them with much needed emotional support.
REGISTERED SUPPORT / OPPOSITION:
Support
WEAVE (sponsor)
AT&T
California Catholic Conference
California College and University Police Chiefs Association
California Judges Association
California Public Defenders Association
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California State Lodge, Fraternal Order of Police
Legal Services of Northern California
Legal Aid Society of San Diego
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
Sprint
T-Mobile
Verizon
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
AB 1407
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