BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1733|
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THIRD READING
Bill No: AB 1733
Author: Reyes (D), et al
Amended: 7/2/04 in Senate
Vote: 21
SENATE ENERGY, U.&C. COMMITTEE : 7-0, 6/22/04
AYES: Bowen, Alarcon, Battin, Dunn, Murray, Sher,
Vasconcellos
NO VOTE RECORDED: Morrow, McClintock
ASSEMBLY FLOOR : Not relevant
SUBJECT : Telecommunications: selling or licensing lists
of subscribers
SOURCE : Author
DIGEST : This bill requires wireless telephone companies
to obtain express written opt-in consent from customers
before publishing wireless phone numbers in a directory.
Senate Floor Amendments of 7/2/04 correct a drafting error,
make a clarifying change and double-join the bill to SB 199
(Murray).
ANALYSIS : Current law permits traditional landline phone
companies to make residential and business customer phone
numbers available through both a printed directory and
"411" telephone directory assistance.
Current law, through a rate-setting process at the
CONTINUED
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California Public Utilities Commission (CPUC), permits
traditional landline phone companies to remove customer
phone numbers from public directories, if a customer asks,
and to charge a monthly fee to each customer who chooses to
have an unlisted number.
Current law doesn't restrict wireless telephone companies
from including customer wireless phone numbers in a public
directory.
Current law specifically prohibits unsolicited
telemarketing calls to cell phone numbers using automatic
telephone dialing systems or prerecorded voice messages but
does not prohibit telemarketing to cell phones using live
operators.
Current law prohibits sending unsolicited advertisements as
text messages to cell phones and pagers.
Current law allows people to place both landline and cell
phone numbers on a National "Do Not Call" Registry and
requires telemarketers to avoid calling any phone numbers
on the registry.
This bill requires wireless telephone companies to obtain
express written opt-in consent from customers before
selling lists of customer numbers or publishing wireless
phone numbers in a directory.
This bill requires the consent to be on a separate document
in at least 10-point type, and that it be signed and dated
by the subscriber.
This bill requires wireless telephone companies that bill
customers for receiving unsolicited telemarketing calls or
text messages to disclose on the consent form that by
consenting to have a published number, the subscriber may
receive and may be billed for receiving unsolicited calls
or text messages.
The bill provides that a subscriber who provides express
prior consent may revoke that consent at any time. The
provider shall comply with the request to opt-out within 30
days.
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The bill provides that a subscriber shall not be charged
for making the choice to not be listed in a directory.
The bill prohibits wireless phone directory information
from being published or sold.
The bill clarifies that it does not apply to the sharing of
customer information for the purpose of transferring the
customer's assigned phone number to a different wireless
telephone company under the new number portability rules
established by the Federal Communications Commission.
This bill is double-joined to SB 199 (Murray).
Background
The Cellular Telecommunications and Internet Association
(CTIA) is putting together a national directory of cell
phone numbers that could be available by the end of this
year. The directory is expected to include about 75
percent of the nation's 163 million cell phone numbers.
(Verizon Wireless has said it won't list any of its 39
million customers in the directory.) Some experts estimate
the directory could generate $3 billion in directory
assistance fees and additional minutes sold for wireless
companies.
Many wireless telephone companies have been anticipating
the creation of such a directory for some time and have
been including in their standard contracts a specific
clause that gives them permission to publish numbers. For
example, T-Mobile's contract reads: "Unless you make other
arrangements with us and pay any required fee, we may list
your name, address, and number in a public directory."
Until recently, when people switched wireless phone
companies, their wireless phone numbers changed as well, so
marketers were reluctant to invest much energy in compiling
databases of wireless phone numbers. That changed last
year when the Federal Communications Commission (FCC)
established rules on number portability and for the first
time allowed people to keep their wireless phone numbers
when they switched service providers.
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The wireless telephone industry believes there's a need for
a cell phone directory because more and more people, about
8 million so far, according to the CTIA, are canceling
their traditional landline phone service and using only
wireless phones. Privacy advocates fear the new directory
will cause a wave of telemarketing and text message spam to
cell phones, and that aside from the nuisance, people will
end up paying for sales pitches to their wireless phone.
Wireless phone users currently pay for all incoming calls
and text messages, either on a per minute basis or by
purchasing a "bucket" of minutes at a fixed rate.
Telemarketing Laws . In 1991, Congress enacted the
Telephone Consumer Protection Act (TCPA), which
specifically prohibits using automatic dialers or
pre-recorded messages to make telemarketing calls to
cellular telephones. Since the vast majority of
telemarketers use autodialing machines, the restriction
effectively bans telemarketing to cell phones. However,
neither state nor federal law places an outright ban on
telemarketing to cell phones, which means live sales calls
made to cell phones without the help of auto dialers are
legal.
In 2003, the FCC revised its rules implementing the TCPA
and established, in coordination with the Federal Trade
Commission (FTC), a National "Do Not Call" Registry and
gave people the right to place home and wireless phone
numbers on the directory. Telemarketers (with the
exception of charities and political organizations) must
search the directory every three months and avoid calling
any numbers on the registry.
While the TCPA restrictions on telemarketing to cell
phones, combined with California's ban on unsolicited text
messages to cell phones [AB 1769 (Leslie), Chapter 699,
Statutes of 2002], will certainly work to limit unwanted
phone calls and messages once the cell phone directory is
published, this bill seeks to give people further control
over their privacy by giving them the right to keep their
wireless phone numbers out of the directory in the first
place.
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Related Federal Legislation . H.R. 3558 (Pitts), called the
Wireless 411 Privacy Act, was introduced in November 2003
and requires wireless telephone companies to obtain opt-in
consent from each current customer prior to publishing that
customer's number in a public directory. For new customers
who sign up for service after the bill goes into effect,
the bill allows consent to be contained within the standard
cell phone contract but requires companies to provide a
separate notice to customers, once at the time the person
signs up for service and annually thereafter, informing
people of their right not to be listed in any public
directory. The bill requires companies to make it
convenient for customers to opt-out of the directory and
prohibits charging a fee to customers who choose to have an
unlisted number. Congress is also considering two other
similar bills: S.1963 (Specter) and S.1973 (DeWine).
Related legislation
SB 199 (Murray) requires wireless telephone companies to
obtain express prior consent before disclosing a customer's
wireless phone number. The bill allows the Attorney
General and district attorneys to seek civil penalties of
$500 for the first violation and $1,000 for subsequent
violations and gives wireless phone customers the right to
sue their cell phone company in civil court for $1,000 per
violation.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/6/04)
Consumer Action
Consumers Union
Office of Ratepayer Advocates, California Public Utilities
Commission
Privacy Rights Clearinghouse
Utility Consumers' Action Network
World Privacy Forum
NC:nl 7/6/04 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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