BILL ANALYSIS Ó AB 1407 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 1407 (Atkins) As Amended July 6, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |78-0 |(June 2, 2015) |SENATE: |38-0 |(August 20, | | | | | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. 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 AB 1407 Page 2 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. 4)Clarifies that this bill does not affect the court's ability to apportion assets and debts or its ability to determine the temporary use, possession and control of personal property, as specified. 5)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. 6)Requires the Judicial Council, by July 1, 2016, to develop any necessary forms or rules. The Senate amendments clarify that this bill does not affect the court's ability to determine the temporary use, possession and control of personal property. 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. AB 1407 Page 3 FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs. 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 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. 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 (Global Positioning System) 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 AB 1407 Page 4 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. Process Outlined in the Bill Protects Parties' Rights. Under the process set forth in this 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 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, this 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 AB 1407 Page 5 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, this 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, this 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." Third, this 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. As a result of these protections in this bill, the wireless service providers should be protected from any negative consequences of these transfers and may even end up ahead with additional customers. Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0001378