BILL ANALYSIS Ó
AB 1407
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CONCURRENCE IN SENATE AMENDMENTS
AB
1407 (Atkins)
As Amended July 6, 2015
Majority vote
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|ASSEMBLY: |78-0 |(June 2, 2015) |SENATE: |38-0 |(August 20, |
| | | | | |2015) |
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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