BILL ANALYSIS 1 1 SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE DEBRA BOWEN, CHAIRWOMAN AB 1814 - Reyes Hearing Date: June 25, 2002 A As Amended: April 1, 2002 Non-FISCAL B 1 8 1 4 DESCRIPTION Current law requires long-distance telephone companies to provide 30 days notice to customers before going out of the long-distance business or discontinuing service for an entire class of customers. Current law provides no specific penalty for long distance telephone companies that violate the above notice requirement. However, penalties may be applied under the state's Unfair Practices Act (Business & Professions Code 17000 et seq.), which allows civil penalties of up to $2,500 to be recovered in a civil action by the attorney general or a district attorney. Current law requires electric, gas, heat, and water utilities to provide at least 15 days notice before cutting off service due to the customer's failure to pay a delinquent account balance. Public utilities that violate this requirement are subject to a misdemeanor punishable by a fine up to $1,000 or imprisonment up to one year, or both. Current law requires cable and satellite companies to provide at least 15 days notice before cutting off service due to a customer's failure to pay a delinquent account balance. Current law gives city and county governments the ability to set penalties for cable and satellite companies that violate the above notice requirement, but limits those penalties to no more than $200 per day, not to exceed a total of $600 per occurrence. Current law does not place any such requirements on providers of electronic mail services. This bill requires Internet service providers to notify customers 30 days in advance of voluntarily exiting the business of providing Internet access services, unless otherwise permitted by law or contract. This bill requires the advance notice to include: a description of any proposed transfer of services; any applicable rates, terms and conditions of the new service; a statement that the customer has the right to transfer to a service provider of his or her choice; and a toll-free customer service telephone number customer. This bill prohibits an Internet service provider from charging the customer for transferring a customer to a new service in a case where the provider is exiting the business. This bill provides that it preempts local government and local agency rules regarding notice of email service termination. BACKGROUND Consumers and businesses have come to rely on email services to conduct business, much as they rely on telephone and other utility services. Many companies allow customers to order products and services through email; students enrolled in distance education programs rely on receiving and submitting assignments electronically; employees communicate with co-workers at offsite locations via email; patients access their medical records via the Internet; and many people use email to take care of everyday business they used to handle by mailing letters and making phone calls. On December 1, 2001, more than 850,000 subscribers of Excite@Home email services provided via AT&T Broadband were cut off from service without notice and left without Internet access for several days before being moved to a new network. The service shut down came on the heels of Excite@Home's September 2001 bankruptcy filing and its failure to reach a financial agreement with AT&T, which would have allowed for a smooth transition period for customers to be moved to a new provider. Excite@Home was able to reach agreements with other cable companies, such as Comcast and Cox Communications, whose customers experienced no interruptions in service. Tens of thousands of customers whose services were abruptly shut down were California residents and businesses, who experienced problems getting customer service and technical assistance, restoring Internet and email services on the new network, and retrieving lost email messages and website data. Many believe email service has become as essential to conducting business as telephone and other utility services for many individuals and companies. This bill extends protections to email users similar to the protections enjoyed by customers of telephone, electricity, gas, water, cable, and satellite providers who can't shut down services without providing adequate notice to their customers. COMMENTS 1)Voluntary Exit. This bill requires 30 days advance notice to customers when an Internet service provider is "voluntarily exiting the business of providing Internet connection service" (see Page 2, Lines 10-11). However, in the Excite@Home case, AT&T provided its customers with Internet services by subcontracting the provision of those services to Excite@Home. It's unclear whether AT&T or Excite@Home would be considered the Internet service provider under this bill. If AT&T were considered the provider, then the notice requirements in this bill would not apply. Since the goal of the bill is to protect consumers against sudden disruptions in service, it's unclear why the protection should apply only when a provider goes out of business. As such, the author and the committee may wish to consider amending the bill to remove the language limiting its provisions to situations where a provider exits the business. 2)Shutting Down Spammers and Hackers. While the bill requires 30 days notice before terminating service, it allows a provider to cut off service without providing that notice if the customer violates the service contract. This allows providers to shut down spammers, hackers, and others who violate the terms of their contract with the provider as soon as they're identified. However, the bill also allows providers to place a clause in contracts stating that services may be terminated at any time for any reason, thereby nullifying the intent of the bill. To preclude that possibility, the author and the committee may with to consider whether the bill should clarify that no Internet service provider may terminate a contract without cause. This can be accomplished by adding the following provision to Page 2, Line 31: "(c) No contract for electronic mail service may permit termination of service without cause." 3)Remedies. The bill does not provide specific remedies that would allow a customer cut off from service without the appropriate notice to recover damages suffered from the provider. The author and the committee may wish to consider whether the bill should specifically give customers the right to recover damages, if they're cut off from Internet access without appropriate notice. SB 1383 (Bowen), a similar bill which the committee approved earlier this year, allows customers to recover actual damages or up to $50 in liquidated damages, whichever is more, from a provider that violates the bill's notice requirements. The liquidated damages are intended to be sufficient to allow a customer to recover costs associated with having their email communication disrupted. This can be accomplished by adding the following language to Page 2, Line 31: "(d) A customer may bring an action in any court of competent jurisdiction against the provider of electronic mail service for a violation of subdivision (a) and may seek either actual damages, or liquidated damages in the amount of fifty dollars ($50). The provisions of this section shall be in addition to any other remedies or penalties available at law." 4)Federal preemption . In order to address a concern that the bill might eventually come into conflict with a federal law or regulation, the author and the committee may wish to consider adding the following language to the bill: "(e) This section shall become inoperative on and after the date that a federal law or regulation is enacted that regulates notice requirements in the event of the termination of Internet service." 5)Related Legislation. SB 1383 (Bowen), which this committee passed on a 6-1 vote earlier this year, is pending before the Assembly Jobs, Economic Development, and the Economy Committee. That bill requires Internet service providers to notify customers 30 days in advance terminating a customer's email services and is similar to the manner in which this analysis suggests that AB 1814 be amended. ASSEMBLY VOTES Assembly Floor (49-28) Assembly Jobs, Economic Development, And The Economy Committee (8-4) POSITIONS Sponsor: Author Support: California Public Interest Research Group California School Employees Association Greenlining Institute Oppose: American Electronics Association California Alliance for Consumer Protection Jennie Bretschneider AB 1814 Analysis Hearing Date: June 25, 2002