BILL ANALYSIS 1
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SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
DEBRA BOWEN, CHAIRWOMAN
AB 870 - Wesson Hearing Date:
June 26, 2001 A
As Amended: April 19, 2001 FISCAL B
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DESCRIPTION
Current law prohibits, with specified exemptions, the use of
automatic dialing-announcing devices (e.g. automated dialers
broadcasting pre-recorded announcements) between 9:00 p.m. and
9:00 a.m.
Current law requires when such devices are used, the person
receiving the call must be greeted by a live operator who must
ask whether the called party will give his or her consent to
hear the pre-recorded announcement.
This bill prohibits, effective July 1, 2002, any person or
company operating an automatic dialing-announcing device from
making telephone connections where no live person or
pre-recorded message is available to greet the person called.
This bill authorizes the California Public Utilities Commission
(CPUC) to establish, by July 2002, an acceptable error rate, if
any, for telephone connections made in violation of the bill.
This bill authorizes the CPUC to require a person or company
operating an automatic dialing device to maintain records of
telephone connections made for which no live person or
pre-recorded message was available to greet the person called.
BACKGROUND
An "abandoned telephone call" is a phenomenon that occurs when
computers dial telephone calls quicker than the live operators
can pick them up in order to comply with the law requiring phone
call recipients to be greeted by a live voice. Such calls are
the consequence of "predictive dialers," a form of automated
dialing where a computer dials telephone numbers from a database
while telemarketers talk with other potential customers.
Predictive dialers dial based on a statistical average of how
long the average telemarketer conversation will last and the
likelihood a person will answer his or her telephone. Because
the system is based on a "statistical average," inevitably some
called parties are greeted by silence.
Telemarketing has long been the subject of legislation and is
often associated with solicitations for long-distance telephone
service. In recent years, a number of bills have been
introduced in the Legislature to limit telemarketing, but none
of them have been successful - with the exception of a
"do-not-call" list for the solicitation of electric service (SB
477 [Peace], Chapter 275, Statutes of 1997).
Current federal law generally conditions the use of automatic
dialing-announcing devices in ways similar to California law.
In addition, federal law gives consumers the right to tell
individual telemarketers who call to put them on the company's
"do not call" list, which every company is required to maintain
by law. However, that option is of no help to people who
receive calls which have been abandoned by automatic dialing
devices before a person has a chance to ask to be placed on a
"do not call" list.
This committee passed a similar measure, AB 2721 (Wesson), last
year which included the provisions of AB 870 but was defeated on
the Senate floor on a 12-28 vote. Aside from prohibiting
abandoned telephone calls, AB 2721 had a provision added to it
on the Senate floor to create a new exemption from the laws
restricting the use of pre-recorded messages, which would have
allowed the use of pre-recorded messages for non-profit
solicitations, as well as campaign and political fundraising
purposes. Such an exemption is not included in this measure.
COMMENTS
1)Hang Up On The Hang-Ups . The author believes abandoned
telephone calls are annoying, an invasion of privacy, and
potentially threatening to certain individuals. This,
according to supporters, is at minimum a nuisance, and it
potentially brings an element of fear to some people who may
think someone is watching their home and/or their movements.
2)How Will The Bill Be Enforced ? Current law preventing
telemarketers from calling between 9:00 p.m. and 9:00 a.m.,
prohibiting the use of pre-recorded messages without a live
operator introduction, and banning pre-recorded messages from
being left on answering machines is, at least conceptually,
easy to enforce from the standpoint that the person called
will know which company placed the call.
Under this bill, if a person gets an "abandoned call," it's
unlikely they'll be able to know whether it was a company
using an automated dialing device that hung up and, if so,
which company made the call.
In an attempt to overcome that issue, this bill gives the CPUC
the authority to require companies using automatic calling
devices to keep records of any abandoned calls and submit
those records to the CPUC for review. In addition, the
Consumer Services Division of the CPUC can use its existing
monitoring authority to conduct on-site visits of facilities
where phone calls are being placed. The author and committee
may wish to consider whether these enforcement mechanisms are
sufficient to ensure compliance with the bill.
3)"May" vs. "Shall" . The bill says the CPUC "may" establish an
acceptable error rate for abandoned calls by July 2002.
However, unclear is what happens in the event the CPUC chooses
not to establish an error rate by next July, or at any time
after that. Does that mean the permissible error rate is 0%?
The author and committee may wish to consider requiring the
CPUC to establish an acceptable error rate prior to allowing
the other provisions of the bill to take effect.
4)What Penalties Apply? While abandoned telephone calls may be
a nuisance and may incite worry or fear in some individuals,
the bill subjects any person or company using an automated
dialing machine that hangs up on people to civil penalties of
up to $500 per violation and/or disconnection of telephone
service to the automatic dialing-announcing device. If the
CPUC uses the authority provided in this bill to set an
acceptable error rate for abandoned calls, companies that go
beyond the established error rate - intentionally or
inadvertently (e.g., due to a computer glitch) - are subject
to a misdemeanor penalty, including up to a year in county
jail and/or a fine of up to $1,000 for each violation. The
author and committee may wish to consider whether these
penalties are appropriate or whether the misdemeanor penalty
should apply only to intentional violation of the bill.
ASSEMBLY VOTES
Assembly Floor (71-2)
Assembly Appropriations Committee (21-0)
Assembly Utilities and Commerce Committee
(17-0)
POSITIONS
Sponsor:
Privacy Rights Clearinghouse
The Utility Reform Network (TURN)
Utility Consumer Action Network (UCAN)
Support:
American Association of Retired Persons California
Oppose:
Direct Marketing Association
Jennie Bretschneider
AB 870 Analysis
Hearing Date: June 26, 2001