BILL ANALYSIS                                                                                                                                                                                                    





                             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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