BILL ANALYSIS                                                                                                                                                                                                    



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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1407 (Atkins)


          As Amended  July 6, 2015


          Majority vote


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          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  








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            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.  








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          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  








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          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  








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          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