BILL ANALYSIS                                                                                                                                                                                                              1
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                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

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                                      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