BILL ANALYSIS                                                                                                                                                                                                    



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          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














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