Barasch v. Bell Telephone Co. of Pennsylvania
| Decision Date | 18 March 1992 |
| Parties | , 130 P.U.R.4th 280, Util. L. Rep. P 26,175 David M. BARASCH, Consumer Advocate, et al., Appellees, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellant. David M. BARASCH, Consumer Advocate, et al., Appellees, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellant. |
| Court | Pennsylvania Supreme Court |
James G. Pachulski, Julia A. Conover, Daniel E. Monagle, Irving R. Segal, Gerard J. St. John, D. Michael Stroud, Philadelphia, and John Levin, Harrisburg, for appellants.
Susan Borden Evans, Philadelphia, amicus curiae, for N.O.A.D.
Robert A. Preate, Scranton, amicus curiae, for Economic Dev. Counsel of N.E. Pa.
Nicholas J. Casenta, Jr., Downingtown, amicus curiae, for Pa. D.A. Assoc.
Norman J. Kennard and Michael L. Swindler, Pittsburgh, amici curiae, for Pa. Tel. Assoc.
John Levin, Harrisburg, for Pa. P.U.C.
Irwin A. Popowsky, Harrisburg, for David M. Barasch.
Scott Burris, Philadelphia, for A.C.L.U. of Pa.
David T. Kluz, Harrisburg, for Pa.P.C.A.D.V.
Robert A. Graci, Harrisburg, for Atty. Gen. of Pa.
Irving R. Segal, Philadelphia, for The Bell Tele. Co.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
In this appeal we are called upon to address the legality of "Caller*ID" service which Appellant, The Bell Telephone Company of Pennsylvania (Bell), proposes to offer to its customers. For the reasons set forth below, we agree with the Commonwealth Court that "Caller*ID" violates our Wiretapping and Electronic Surveillance Control Act, 18 P.C.S. §§ 5701-5781, and hence cannot now be offered in Pennsylvania. The facts on which this appeal is based are as follows.
On January 18, 1989, Bell filed a revision to Tariff Pa. PUC No. 1, proposing that various new services be added to its tariff, including the offering of the optional service known as Caller*ID. Caller*ID allows a telephone subscriber to identify and record the telephone number from which a call is being made, including private and unlisted numbers, through the use of a device supplied to customers which displays that number and then stores it for future retrieval. 1
With Caller*ID service, every time a call is made from a private telephone, the caller's telephone number will be obtained by the Caller*ID subscriber and by anyone to whom that subscriber chooses to give or sell that number. This is true regardless of whether the caller wishes to divulge the number to the call recipient.
Complaints against the Caller*ID portion of the proposed tariff were filed by a number of parties, including the Office of Consumer Advocate (OCA); the Office of the Attorney General; Barry Steinhardt and the American Civil Liberties Union of Pennsylvania (ACLU); Karen Kulp, President of the Pennsylvania Coalition Against Rape; and Mary Jane Isenberg, President of the Pennsylvania Coalition Against Domestic Violence (PCADV).
By order entered March 31, 1989, the Pennsylvania Public Utility Commission (PUC) suspended the Caller*ID portion of the tariff for investigation purposes and the matter was assigned to an Administrative Law Judge (ALJ) for hearings and a recommended decision. The remaining services offered by Bell in this proceeding were approved by the PUC without further investigation. 2
On September 22, 1989, after extensive hearings and briefings by the parties, the ALJ issued his recommended decision on Caller*ID. In that decision, the ALJ agreed with the positions taken by OCA, PCADV and the Attorney General and found that Caller*ID service was not in the public interest unless it was provided along with a free "per-call" blocking option, with which callers could block the transmission of their telephone numbers if they chose to do so.
The recommended decision concluded that unblockable Caller*ID constitutes a "trap and trace device" as that term is defined in the Pennsylvania Wiretap Act, supra. The ALJ determined that providing the service as proposed by Bell would be a violation of law, and thus per se unjust and unreasonable under the Public Utility Code. Moreover, the ALJ determined that, whether or not Caller*ID service was deemed violative of the Wiretap Act, it was not in the public interest to offer Caller*ID without a blocking option. The ALJ found that numerous groups and individuals who require privacy in making calls in certain instances would be threatened by unblockable Caller*ID. The ALJ also found that the implementation of a blocking option would not diminish the value of Caller*ID in responding to annoying calls, particularly when the benefits of the service were considered along with other Bell services such as Call*Trace. 3
After the filing of exceptions and reply exceptions by various parties, the PUC, at its public meeting on November 9, 1989, voted to reject the Administrative Law Judge's recommended decision and to allow Bell to provide Caller*ID almost without restriction or protection for callers. The three to one decision determined that Caller*ID blocking could only be provided to non-profit domestic abuse shelters and their staffs, law enforcement agencies, and individuals "certified" by law enforcement officials as requiring Caller*ID blocking to "mitigate the risk of personal injury." Caller*ID blocking would not be made generally available to any other individuals.
On November 28, 1989, Petitions for Review of the Commission's order were filed by the OCA and the PCADV. On December 8, 1989, the OCA and the PCADV filed a Joint Application for Partial Stay with the Commonwealth Court. The application requested that Bell be directed to provide a free per-call blocking mechanism if it chose to offer Caller*ID to the general public or, alternatively, that Bell be permitted to offer Caller*ID service only to emergency service providers, i.e., police, fire and county emergency dispatch centers, during the pendency of the appeal. Petitions for Review and Applications for Stay were also filed by the ACLU and by Carol Walton and the Consumer Education and Protective Association (CEPA).
By opinion and order entered December 29, 1989, after argument, Judge Crumlish of the Commonwealth Court granted the Application for Partial Stay and directed that Caller*ID could only be offered to emergency service providers pending the resolution of the appeal. The opinion and order of Judge Crumlish is reported at 130 Pa.Cmwlth.Ct. 418, 568 A.2d 726 (1989).
After briefing and en banc argument on the merits, the full Commonwealth Court held that Bell's proposed Caller*ID service violates the trap and trace provisions of the Pennsylvania Wiretap Act. The Commonwealth Court decision is reported at 133 Pa.Cmwlth.Ct. 285, 576 A.2d 79 (1990). A majority of the court, in an opinion by Judge Smith, also found that the PUC's approval of Caller*ID violated the privacy rights of Pennsylvania citizens guaranteed by the Pennsylvania Constitution. The court also ruled that the limited blocking procedure approved by the Commission was wholly devoid of minimum due process protections and that the PUC decision on that point was not supported by substantial evidence. The Commonwealth Court majority also declared that Caller*ID service would be unlawful and unconstitutional even if it were offered along with the per-call blocking option recommended by the ALJ.
In an opinion which concurred in part and dissented in part, Judge Pellegrini, joined by Judge McGinley, fully endorsed the holding that Caller*ID violated the trap and trace provisions of the Pennsylvania Wiretap Act. However, Judge Pellegrini stated that the court should not have reached the constitutional questions raised in the Petition for Review.
Because the Commonwealth Court order reversed the Commission Order in its entirety, three of the successful Petitioners below--OCA, PCADV and ACLU--filed an Application for Limited Reargument which sought clarification of the order as to one point. Specifically, the applicants asked the court to clarify their order to the effect that it did not preclude the use of Caller*ID by emergency service providers. Such emergency service providers are exempt from the relevant prohibitions of the Wiretap Act. On July 18, 1990, the court entered an order denying the Application for Reargument, but, in doing so, declared that the court's majority opinion "neither impliedly nor expressly invalidates any provision of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 P.C.S. §§ 5701-5781, allowing the use of recording and trap-and-trace devices by police and other designated emergency systems.
The PUC and Bell filed Petitions for Allowance of Appeal with this Court on August 14, 1990. By orders dated December 19, 1990 and December 24, 1990, we granted both petitions and briefs were subsequently filed by the PUC, Bell and several amici curiae. The appeals were consolidated by order of this Court dated February 8, 1991. 4
We agree with Judge Pellegrini in that Caller*ID violates the Wiretap Act, and that it is unnecessary, therefore, to reach the constitutional issues addressed by the Commonwealth Court majority.
Simply put, Caller*ID, as proposed by Bell and approved by the PUC, violates the "trap and trace" prohibitions contained in the Pennsylvania Wiretap Act.
A trap and trace device is defined at 18 P.C.S. § 5702 as follows:
Trap and trace device.
A device which captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted.
The relevant section of the Wiretap Act that governs the use of trap and trace devices is 18 P.C.S. § 5771, which provides:
General prohibition of pen register 5 and trap and trace device use; exception.
(a) General rule.--Except as provided in this section, no person may install or use a pen register or a trap and trace device...
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