BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1407 (Atkins)
Version: May 21, 2015
Hearing Date: June 30, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family law: protective orders: wireless telephone numbers
DESCRIPTION
This bill would, beginning July 1, 2016, authorize a court,
after notice and a hearing, to issue a domestic violence
restraining order directing a wireless telephone service
provider to transfer the billing responsibility and rights to a
wireless telephone number to a requesting party.
This bill would require that, upon transfer of billing
responsibility, the requesting party assume all financial
responsibility for the transferred telephone number, monthly
service costs, and costs for any mobile device associated with
the telephone number.
This bill would prohibit a cause of action against a wireless
telephone service provider, its officers, employees, or agents,
for actions taken in accordance with the terms of the court
order, and would require the Judicial Council to, on or before
July 1, 2016, develop any forms or rules necessary to effectuate
these provisions.
BACKGROUND
Despite numerous beneficial legislative measures, domestic
violence remains a significant problem, affecting an estimated
one in four families. "Abuse" under the Domestic Violence
Prevention Act encompasses a number of different actions,
including: (1) physically hurting or trying to hurt someone; (2)
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sexual assault; (3) making someone reasonably afraid that they
or someone else are about to be seriously hurt; (4) harassing,
stalking, or threatening someone; (5) disturbing someone's
peace; or (6) destroying someone's personal property. A court
may issue a temporary restraining order to immediately protect a
party for up to a few weeks, and after notice and a hearing
where the respondent has had an opportunity to address the
allegations against him or her, the court may enjoin an abuser
from specified behavior for up to five years.
Survivors planning to leave their abusers, or those who have
already escaped and wish to start a new life, often rely on
cellular phones to plan a transition and communicate with
supportive family, friends, or other community resources.
However, with the development of smart phones and new
technology, abusers have begun using cell phones to determine a
victim's location, behavior, and plans in a variety of ways,
including using a location service on family plans, installing
spyware on the phone, monitoring phone activity through phone
bills, installing applications that provide location information
about the victim's phone, monitoring recent calls and text
messages and electronic mail, and Internet Web browsing history.
Seeking to better protect survivors of domestic violence and
their children, this bill would allow a court in a domestic
violence proceeding, to direct a wireless telephone service
provider to transfer billing responsibility and rights for a
wireless telephone number to a requesting party.
CHANGES TO EXISTING LAW
Existing law authorizes the court under the Domestic Violence
Prevention Act (DVPA), to issue an ex parte restraining order
enjoining a party from assault or harassment, specified
behavior, obtaining the address or location of the protected
party, and/or determining the temporary use, possession, and
control of real or personal property. (Fam. Code Secs. 6320 et.
seq., 6324, 6340 et. seq.)
Existing law allows a court, after notice and a hearing, to
issue any restraining order described above, or an order
excluding the restrained party from a dwelling, making custody
determinations, ordering a party to pay child support, ordering
the restrained party to participate in a batterer's program, for
up to five years. (Fam. Code Secs. 6340 et seq.)
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This bill would authorize a court, beginning July 1, 2016, in a
Domestic Violence Prevention Act proceeding after notice and a
hearing, to issue an order directing a wireless telephone
service provider (service provider) to transfer billing
responsibility and rights to a wireless telephone number(s) to a
requesting party, if the requesting party is not the
accountholder.
This bill would require that the order be made to the service
provider, as specified, and contain specified information.
This bill would require the service provider, when it cannot
operationally or technically effectuate the order, to notify the
requesting party within 72 hours.
This bill would provide that a service provider, as part of the
transfer of billing responsibility, is not precluded from
applying any routine and customary requirements for account
establishment, including but not limited to identification,
financial information and customer preferences, to the
requesting party.
This bill would provide that no cause of action will lie against
any wireless provider for actions taken in accordance with a
court order issued pursuant to the provisions above.
This bill would require the Judicial Council, by July 1, 2016,
to develop any necessary forms or rules necessary to effectuate
the above provisions.
This bill would include Legislative intent language.
COMMENT
1.Stated need for the bill
According to the author:
Current law provides no mechanism for victims of domestic
violence to retain their wireless telephone number and device
in these instances where the victim is not the wireless
telephone accountholder. Allowing these individuals to retain
the use of an existing wireless telephone number and access to
their contacts and other information stored within the phone
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is important to the their safety and emotional support.
2.Additional protections for victims of domestic violence
In a domestic violence proceeding, existing law authorizes a
court to restrain a party from certain acts including harassing,
striking, stalking, threatening, or contacting a protected
party. This bill would additionally authorize a court, as part
of a domestic violence proceeding, to order a wireless telephone
provider to transfer a wireless number and billing
responsibility to a requesting party who is not an
accountholder. Women Escaping a Violent Environment (WEAVE),
sponsor, writes in support:
This bill is necessary for several reasons. First, it halts
GPS tracking and stalking of a domestic violence victim. When
the abuser is the accountholder, 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 accountholder from
controlling the account and suspending service, which
interferes with the victim's ability to use this lifeline to
community resources, life-saving services, and support network
they need to leave their abuser.
WEAVE additionally explains that the practical effect of this
bill will be to enable judges to separate a single wireless
contract into two contracts, by transferring the rights and
responsibilities to a new contract holder, the protected party.
a. Ability of court to order transfer of actual device to
protected party
Depending on type, domestic violence protective orders may
last days, weeks, years, or even permanently. Temporary
restraining orders (TROs) are filed with the court and become
effective upon receiving a judge's signature and being served
on the batterer. TROs may be granted ex parte, without formal
notice to, or presence of the batterer, and are generally
issued or denied on the date of application. (Fam. Code Sec.
6326.) TROs are normally effective for 21 days or until a
hearing on the matter. After proper notice and hearing, a
restraining order may be granted for up to five years, subject
to future modification. Existing law also authorizes a court
to issue an order, either ex parte or after notice and a
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hearing, determining the temporary use, possession and
control of personal property, which would arguably include a
wireless device, used by a survivor, but paid for and held in
a batterer's name.
Accordingly, under existing law, a court may transfer a
wireless device to a protected party, thereby ensuring that a
protected party would have access to all of the information
held in that physical device, including her contacts and
photos. While possession of the actual device partially
ensures that some information will not be available to the
batterer, the batterer may still be able to look up various
information about the person's activity or calls. In support,
the California College and University Police Chiefs
Association writes:
This is a critically important bill for victims of domestic
violence. Currently a domestic violence victim who is in a
shared family plane wireless telephone contract where the
abuser is the primary accountholder has to go through
unreasonable disruption just to keep in telephone contact
with their own support system. Our members have way too
much contact with persons escaping a domestic violence
situation and this bill will go a long way towards assuring
a domestic violence victim's safety and emotional support.
To ensure that the survivor is fully protected, it is
important that victims understand that possession of a
wireless device alone does not necessarily ensure that the
contract has been separated, thereby creating the protections
discussed above. Accordingly, a victim can request possession
of the phone (existing law) and under this bill would be able
to also request a separation of the contract, thereby
preventing a batterer from tracking a survivor's call, text,
or location history.
However, to ensure that victims and their representatives are
aware that a wireless device is arguably personal property
which a court may determine temporary possession of, the
author may wish to amend the bill to incorporate the specific
code provision granting the court this authority.
Suggested amendment:
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(d) This section shall not affect the ability of the court
to apportion the assets and debts of the parties as
provided for in law, or the ability to determine the
temporary use, possession, and control of personal property
pursuant to sections 6324 and 6340.
1.Protects rights of respondent and interests of wireless
providers
This bill would authorize a court, only after a noticed hearing,
to order a wireless provider to transfer a number, including the
billing responsibilities and rights, to a requesting party.
a. Rights of accountholder
By only authorizing a court to order the transfer of a
wireless number only after a noticed hearing, this bill would
ensure that the accountholder will have an opportunity to
defend the allegations against him or her before the court
orders the modification of a personal contract. In addition,
this bill requires that upon the transfer of a phone number to
a requesting party, the requesting party shall assume all
financial responsibility for monthly service costs and costs
for any mobile device associated with the wireless telephone
number.
Staff notes that the responsibility for "costs for any mobile
device associated with the wireless telephone number" arguably
refers to a device that has, for some reason, not been paid
for in full. It may be under an installment plan, leased, or
under some other arrangement. The ability of the court to
determine the possession and use of a device that is owned
outright by the accountholder is provided for under existing
law. (See Comment 2 above.)
b. Interests of wireless providers
While this bill would create an obligation for wireless
providers to comply with a court order directing the division
of wireless numbers under one contract, providers would be
protected from practical, financial, and legal concerns in
several ways. First, the bill would provide an immunity for
any action that a wireless provider, takes "in accordance with
the terms of" an order to transfer billing responsibility and
rights for a telephone number, which would protect the
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provider from an action filed by the accountholder for breach
of contract. Secondly, the bill would allow a wireless
provider to not comply with a court order to transfer phones
if the company cannot "operationally or technically effectuate
the order," in which case the provider would be required to
notify the requesting party within 72 hours. Examples of
possible noncompliance circumstances under this bill include
where the accountholder has already terminated service, where
differences in technology prevent the device from functioning
on the network, and where there are geographic or other
limitations on network or service availability.
Finally, the bill makes clear that the requesting party is
responsible for all monthly service costs and any costs
associated with a device itself, and would allow a wireless
provider to require the requesting party to 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.
Support : AT&T; California Catholic Conference; California
College and University Police Chiefs Association; California
District Attorneys Association; California Judges Association;
California Public Defenders Association; California State Lodge,
Fraternal Order of Police; Immigration Center for Women and
Children; Legal Aid Society of Orange County; 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 Known
HISTORY
Source : Women Escaping a Violent Environment (WEAVE)
Related Pending Legislation : None known.
Prior Legislation : SB 1158 (Yee, 2014) was similar to this
bill. It was never set for hearing.
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Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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