BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1074 (Fuentes)
As Amended May 16, 2011
Hearing Date: July 5, 2011
Fiscal: No
Urgency: No
SK
SUBJECT
Personal Liability Immunity: Telecommunications Service
Providers
DESCRIPTION
This bill would provide that a retail or wholesale service
provider of telecommunications service, or other service,
involved in providing 9-1-1 service, shall not be liable for any
civil claim, damage, or loss caused by an act or omission in the
design, development, installation, maintenance, or provision of
9-1-1 service. This immunity would not apply, however, if the
act or omission that proximately caused the claim, damage, or
loss constituted gross negligence, wanton or willful misconduct,
or intentional misconduct. The immunity also would not apply to
services provided under tariff.
This bill would define public safety agency and 9-1-1 service
for the purposes of this bill, and would otherwise make findings
and declarations with respect to Next Generation 9-1-1 (NG
9-1-1) services.
BACKGROUND
Next Generation 9-1-1 is based on Internet Protocol (IP)
technology in order to provide increased access to 9-1-1
services. According to the California Technology Agency's Web
site, the widespread and rapid adoption of wireless phones and
technologies that enable texting as well as sending videos and
photos over phones, and the increased adoption of broadband
throughout the state, has led to increased expectations by the
public with respect to 9-1-1 services. Many Californians, for
(more)
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example, already assume that they can send text messages to
9-1-1 and receive assistance, though the current system is not
capable of receiving these messages. NG 9-1-1 enables callers
to connect with 9-1-1 public safety answer points (PSAPs) and
request assistance in new ways through multimedia technologies,
allowing texts, photos, or even live videos to be sent to the
PSAP for real-time assistance. It may even enable the use of
Smartphone applications that could transmit a person's health
information directly to the PSAP; the possibilities of NG 9-1-1
are numerous and vital to public safety.
Both Congress and the Federal Communications Commission (FCC)
have recognized the importance of these IP-based technologies to
the future of 9-1-1 services. (See New and Emerging
Technologies 911 Act (NET 911 Act); FCC National Broadband
Plan.) With respect to California, the 9-1-1 Emergency
Communications Division has released an NG 9-1-1 Strategic
Roadmap that identifies liability as a significant challenge
related to regulation and policy for NG 9-1-1. That roadmap
states that "�l]ack of legal clarity on the issue of liability
can lead to significant issues, including delays in provisioning
critical NG 9-1-1 services."
To facilitate the adoption of NG 9-1-1, this bill would provide
immunity to retail or wholesale service providers of
telecommunications service, or other service, involved in
providing 9-1-1 service, for any civil claim, damage, or loss
caused by an act or omission in the design, development,
installation, maintenance, or provision of 9-1-1 service. The
bill, however, would exempt from this immunity provision any act
or omission that proximately caused the claim, damage, or loss
constituted gross negligence, wanton or willful misconduct, or
intentional misconduct. To limit the application of the
immunity, the bill would define public safety agency and 9-1-1
services.
CHANGES TO EXISTING LAW
Existing state law generally provides that everyone is
responsible, not only for the result of his or her willful acts,
but also for an injury occasioned to another by his or her want
of ordinary care or skill in the management of his or her
property or person, except so far as the latter has, willfully
or by want of ordinary care, brought the injury upon himself or
herself. (Civ. Code Sec. 1714.)
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Existing federal law provides that a wireless carrier,
IP-enabled voice service provider, or other emergency
communications provider, and their officers, directors,
employees, vendors, and agents, shall have immunity or other
protection from liability in a state of a scope and extent that
is not less than the scope and extent of immunity or other
protection from liability that any local exchange company, and
its officers, directors, employees, vendors, or agents, have
under federal and state law (whether through statute, judicial
decision, tariffs filed by such local exchange company, or
otherwise) applicable in such state, including in connection
with an act or omission involving the release to a PSAP,
emergency medical service provider or emergency dispatch
provider, public safety, fire service or law enforcement
official, or hospital emergency or trauma care facility of
subscriber information related to emergency calls, emergency
services, or other emergency communications services. (47
U.S.C. Sec. 615a.)
Existing federal law provides that in matters related to 9-1-1
communications via wireless 9-1-1 service, IP-enabled voice
service, or other emergency communications service, a PSAP, and
its employees, vendors, agents, and authorizing government
entity (if any) shall have immunity or other protection from
liability of a scope and extent that is not less than the scope
and extent of immunity or other protection from liability under
applicable law accorded to such PSAP, employees, vendors,
agents, and authorizing government entity, respectively, in
matters related to 9-1-1 communications that are not via
wireless 9-1-1 service, IP-enabled voice service, or other
emergency communications service. (47 U.S.C. Sec. 615a.)
Existing Public Utilities Commission (PUC) tariff provides that
a utility shall not be liable for civil damages, whether in
contract, tort or otherwise, to any person, corporation, or
other entity for any loss or damage caused by any Utility act or
omission in the design, development, installation, maintenance,
or provision of 9-1-1 Service other than an act or omission
constituting gross negligence or wanton or willful misconduct.
The Utility shall not be liable or responsible for any indirect,
incidental, or consequential damages associated with the
provision of 9-1-1 Service, including, for example and without
limitation, when a call originates from a system or line which
makes the provision of specific location information impossible
to provide for technical reasons, and when a failure or
interruption in 9-1-1 Service is due to the attachment of any
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equipment by a customer to Utility facilities.
Existing state law , the Warren 911-Emergency Assistance Act,
requires every local public agency to establish a telephone
service which automatically connects a person dialing the digits
"911" to an established public safety answering point through
normal telephone service facilities. (Gov. Code Sec. 53100 et
seq.) This Act defines "public safety agency" to mean a
functional division of a public agency which provides
firefighting, police, medical, or other emergency services.
(Gov. Code Sec. 53102.)
This bill would provide that a retail or wholesale service
provider of a service involved in providing 9-1-1 service, shall
not be liable for any civil claim, damage, or loss caused by an
act or omission in the design, development, installation,
maintenance, or provision of 9-1-1 service, unless the act or
omission that proximately caused the claim, damage, or loss
constituted gross negligence, wanton or willful misconduct, or
intentional misconduct.
This bill would define "public safety agency" in accordance with
the Warren 911-Emergency Assistance Act, and define "9-1-1
service" as a telecommunications service, or other wireline or
wireless service, that provides to the user of the public
telephone system the ability to reach a public safety agency by
utilizing the digits 9-1-1 or otherwise facilitates the
provision of emergency services pursuant to the
Warren-911-Emergency Assistance Act.
This bill would provide that "9-1-1 service" includes a 9-1-1
service that utilizes in whole or in part an Internet Protocol.
This bill would not apply to services provided under tariff.
This bill would include findings and declarations.
COMMENT
1. Stated need for the bill
According to the author:
This bill extends the same immunity from ordinary negligence
that telephone companies have in their tariff to other service
providers when they are functioning as part of the 911
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emergency system. This immunity would only attach when a
third party is actively participating in connecting a caller
to a 911 provider, and not generally to the company or its
other activities.
All entities associated with responding to emergencies,
including providers of 911 service, have immunity from
ordinary negligence. Without this protection, no entity,
whether a public agency or private company, could assume the
risk of liability associated with responding to an emergency.
Emergency responders have immunity through statute, while
telephone corporations have it through tariffs filed with the
Public Utilities Commission (PUC). NG 911, however, will
involve third-party providers that are neither emergency
responders nor telephone companies, and these third-parties
will be deterred from providing emergency related services if
they cannot have the same immunity from ordinary negligence.
The leading examples are companies that maintain mapping
databases and specialize in converting X/Y map coordinates
into an address, which is a vital function in locating a
wireless caller who cannot give their location.
2. Immunity for NG 9-1-1
This bill seeks to encourage the development of NG 9-1-1 by
providing a qualified immunity for retail or wholesale service
providers of services involved in providing NG 9-1-1. If
successfully implemented, NG 9-1-1 could allow the public to
send text, images, video or data to the "public safety answering
point" (9-1-1 center). That ability would add versatility to
the existing emergency system - for example, an individual who
is deaf or hearing impaired could use a text message to contact
emergency services as opposed to using TTY or TDD devices. The
policy question raised by this bill is what immunity, if any, is
appropriate for NG 9-1-1 service providers in order to achieve
the goal of facilitating the transition to NG 9-1-1.
a. Immunities in general
As a general rule, immunities act to deprive an injured
individual from seeking redress for his or her injuries. That
deprivation counsels against providing immunity unless
absolutely necessary because the benefits of providing that
immunity outweigh the potential costs. As a recent example,
public agencies that operate skateboarding parks receive a
qualified immunity from liability for injuries in those parks
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if they require participants to wear safety equipment. That
immunity was enacted to encourage the construction of
skateboarding parks and to encourage the use of safety
equipment among teenagers. An important part of that immunity
was a sunset, which allowed the Legislature to review the
pilot project, make changes, and evaluate any concerns that
arose. As a result of that oversight, this Committee's
analysis of AB 264 (Correa, 2011) noted that there have been
no reported lawsuits in the past eight years against public
agencies. Thus, the immunity was actually never used, but was
able to provide the necessary incentive to further the public
policy goal of building skateboarding parks and encouraging
the use of safety equipment.
Although skateboard parks are different in nature from NG
9-1-1, this bill represents a similar goal of providing for an
immunity that is intended to spur development of the
technology advances necessary to enable NG 9-1-1 services, in
the interest of public safety. With respect to existing 9-1-1
services, provided by a utility (phone company), existing law,
under the PUC's tariff, provides a broad immunity from civil
damages that is similar to the immunity proposed by this bill.
That PUC immunity is arguably appropriate given the need for
those utilities to provide access to 9-1-1 services - if, in
fact, a utility does not provide 9-1-1 access, that lack of
access would pose a serious risk to the health and safety of
the public. Although similar to the existing immunity for
utilities, the immunity proposed by this bill is fundamentally
different due to applying to a yet-unknown set of
technologies.
b. NG 9-1-1 immunity issues
Although promising, NG 9-1-1 is not currently in place in
California. To the extent that certain devices do offer to
call emergency services (such as a home alarm system that is
tripped by an intruder), that call is done by voice, not
electronically. From a policy standpoint, the difficulty in
crafting an immunity to encourage the development of NG 9-1-1
is that it is unclear exactly what type of products would take
advantage of the immunity. For example, such an immunity
could cover individuals who develop applications for smart
phones that allow users, with one click, to send an automated
message to NG 9-1-1 requesting assistance. That immunity
would spur creation, but, on the other hand, could cause an
individual to release an application for general consumption
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that still had flaws that may cause the software to stop
working in emergency situations.
From a public policy standpoint, any immunity must encourage
the use of new technologies, but also not unduly restrict
valid claims so as to create an incentive for NG 9-1-1
providers to formulate reliable systems for the public to use
to contact emergency services. It should also be noted that
the exact nature of NG 9-1-1 service is unknown as it is still
developing, and the Legislature should closely monitor any
enacted immunity to ensure that it, in fact, is encouraging
innovation while not removing liability for injuries that,
from a public policy standpoint, should be actionable.
c. Proposed amendment to limit immunity
This bill would provide immunity from any civil claim, damage,
or loss caused by an act or omission in the design,
development, installation, maintenance, or provision of 9-1-1
service, unless the act or omission that proximately caused
the claim, damage, or loss constituted gross negligence,
wanton or willful misconduct, or intentional misconduct to any
retail or wholesale service provider of telecommunications
service, or other service that is involved in providing 9-1-1
service. While the bill also defines the meaning of "9-1-1
service," there has been concern expressed by stakeholders
that because of the still-evolving nature of the NG 9-1-1
technologies, this bill would be granting an immunity that is
overly broad based on varying interpretations of who could be
deemed a "provider" for the purposes of this bill.
In an effort to limit the immunity provisions and make
explicit that the immunity does not apply to any operation or
performance of end user devices (equipment) that does not
relate to the provision of 9-1-1 service, this bill should be
amended as follows:
On page 2, after line 26, insert "(d) This section shall
not be construed to modify the liability of any
manufacturer, distributor or other person arising from a
claim, damage or loss related to the operation or
performance of an end user device that is not related to
the provision of 9-1-1 service."
In order to provide additional clarity that any provision of
9-1-1 service must be pursuant to the Warren 9-1-1 Emergency
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Act, the bill should be amended as follows:
On page 2, line 3, after "9-1-1 service" insert "in
accordance with the Warren 911-Emergency Act (Article 6
(commencing with Section 53100)) of Chapter 1 of Part 1 of
Division 2 of Title 5 of the Government Code"
3. Opposition's concerns
The California Chapter of the National Emergency Number
Association, in opposition, contends:
California's citizens, and government agencies that provide
access to emergency medical and/or public safety services,
depend on the absolute reliability and dependability of
products and services associated with guaranteeing access to
emergency service resources. All communications facilities
associated with the provision of 9-1-1 emergency services are
provided by telecommunications corporations or
telecommunication service providers. Communications
facilities that connect callers to Public Safety Answering
Points (PSAPs) are the direct responsibility of the
telecommunication corporations. They are directly responsible
for the installation and maintenance of those facilities. In
addition, they are to provide address data to California's
PSAPs to assure that emergency service providers are being
directed to the appropriate location to respond to emergency
service requests, a critical responsibility.
To �make] immune telecommunication corporations or service
providers from liability caused by their negligence or lack of
appropriate installation, maintenance and information
provision practices is inappropriate. These companies are not
new to corporate responsibility and as "for-profit" entities,
they are properly insured to address malpractice occurrences.
The reliability and dependability of ancillary emergency
communication service provider products must be the
responsibility of the developers and providers of those
products. They must be held responsible for meeting the
standards that are required to assure our citizens of
immediate, reliable and appropriate access to emergency
service providers.
Should communication facilities and/or communication devices
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fail to perform appropriately, and providers of those
facilities and/or services must be held liable and responsible
for those failures. The responsibility for those failures
rests on them, not the public agency engaged in the
utilization of the facilities and/or services to assure
immediate and appropriate access to emergency services that
Californians are entitled to demand.
Support : AT&T; California's Independent Telecommunications
Companies; Civil Justice Association of California
Opposition : California Chapter of the National Emergency Number
Association
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Utilities and Commerce Committee (Ayes 14, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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