Barasch v. Pennsylvania Public Utility Com'n
| Decision Date | 17 July 1990 |
| Court | Pennsylvania Commonwealth Court |
| Parties | , 67 Rad. Reg. 2d (P & F) 1415, 58 USLW 2715 David M. BARASCH, Consumer Advocate, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. PENNSYLVANIA COALITION AGAINST DOMESTIC VIOLENCE and Mary Jane Isenberg, Petitioners, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. Barry STEINHARDT, The American Civil Liberties Union of Pennsylvania, Petitioners, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. CONSUMER EDUCATION AND PROTECTIVE ASSOCIATION and Carol Walton, Petitioners, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. |
Daniel Clearfield, with him, Irwin A. Popowsky, Sr. Asst. Consumer Advocates, Harrisburg, for petitioner, David M. Barasch, Consumer Advocate.
David T. Kluz, Harrisburg, for petitioners, Pennsylvania Coalition Against Domestic Violence and Mary Jane Isenberg.
Scott Burris, Philadelphia, for petitioners, Barry Steinhardt and The American Civil Liberties Union of Pennsylvania.
Steven P. Hershey, Philadelphia, for petitioners, Consumer Educ. and Protective Ass'n and Carol Walton.
John A. Levin, Asst. Counsel, with him, Bohdan R. Pankiw, First Deputy Chief Counsel, and John F. Povilaitis, Chief Counsel, for respondent, Pennsylvania Public Utility Com'n.
Irving R. Segal, with him, Gerard J. St. John, Schnader, Harrison, Segal & Lewis, and James G. Pachulski, Julia A. Conover, Daniel E. Monagle and D. Michael Stroud, Philadelphia, for intervenor, The Bell Telephone Co. of Pennsylvania.
Ernest D. Preate, Jr., Attorney General, with him, Walter W. Cohen, First Deputy Atty. Gen., and Robert A. Graci, Chief Deputy Atty. Gen., for amicus curiae, Atty. Gen. of Pa.
Lloyd R. Persun, Mette, Evans & Woodside, Harrisburg, for amicus curiae, MCI Telecommunications Corp. (MCI).
Before CRUMLISH, Jr., President Judge, and CRAIG, McGINLEY, SMITH and PELLEGRINI, JJ.
This matter comes before the Court on a petition for review of the November 9, 1989 order entered by the Pennsylvania Public Utility Commission (Commission) which rejected the Recommended Decision of Administrative Law Judge Michael Schnierle (ALJ) and approved the use of a customer service reintroduced by Bell of Pennsylvania (Bell) 1 identified as Caller*ID. This service would permit customers to identify the telephone number from which a call is being made to the customer and is to be offered with limited blocking for private, nonprofit, tax-exempt domestic violence intervention agencies; home telephones of staff members of such agencies whose personal safety may be at risk if blocking is not provided and who are certified to require blocking service by the agency head; federal, state and local law enforcement agencies; and persons for whom a duly authorized representative of federal, state and local law enforcement agencies have certified a need for blocking to mitigate the risk of personal injury.
The Commission concluded that by implementing Caller*ID, lives can be saved; annoying, harassing, abusive, obscene and terroristic telephone calls can be curtailed; false bomb threats to public schools, false fire alarms and other harassing and life threatening prank calls may be eliminated or reduced; and residential callers will have their privacy better safeguarded. Petitioners filed complaints before the Commission against the proposed Caller*ID service. On December 29, 1989, this Court granted Petitioners' joint application for partial stay of the Commission order and directed that Caller*ID be offered only to emergency service providers pending final disposition of Petitioners' appeal.
Multiple issues are presented for review, including questions as to whether the use of Caller*ID without a blocking mechanism constitutes a violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act); 2 whether authorization of Caller*ID by the Commission without a blocking mechanism constitutes a violation of privacy rights protected by the Pennsylvania and U.S. Constitutions; whether the Commission's order requiring limited blocking violates due process and is unlawfully discriminatory where the certification procedure ordered by the Commission lacks procedural safeguards; and finally, whether the Commission's order is supported by substantial evidence of record. The scope of review in this matter is limited to determining whether or not the Commission violated any constitutional rights, committed an error of law, or made findings which are not supported by substantial evidence. Bell Telephone Co. of Pennsylvania v. Pennsylvania Public Utility Commission, 83 Pa.Commonwealth Ct. 331, 478 A.2d 921 (1984), appeal dismissed as improvidently granted, 518 Pa. 76, 541 A.2d 314 (1988); 2 Pa. C.S. § 704 (Supp.1989).
Bell filed its revision to Tariff Pa. PUC No. 1 on June 18, 1989 in which Bell proposed new services to its tariff. The filing by Bell proposed to merge existing Customer Calling Service and Customer Local Area Signalling Service tariffs into a unified tariff labeled Bell Atlantic I.Q. Services Family, or services sold primarily to the residential and small business market. ALJ Recommended Decision (R. Decision), pp. 2, 9. 3 Included in this filing is the following description of Caller*ID This service allows a customer to receive the calling telephone number for calls placed to the customer. The calling telephone number will be forwarded from the terminating central office to a customer provided telephone number display device attached to the customer's telephone line. The calling telephone number will be delivered during the first silent interval of ringing. The telephone numbers which will be forwarded to the customer will include telephone numbers associated with private telephone number service and non-listed telephone number service, as described elsewhere in this tariff. For calls originating from a line within a multi-line hunting of four-party service, only the 'main' or 'pilot' telephone number will be delivered. A message indicating the unavailability of a calling telephone number will be forwarded if the call originates from a telephone service which is not located in an appropriately equipped office. Caller*ID is available to individual line customers by monthly subscription, which provides unlimited use of the service.
Commission Order, p. 2. Caller*ID would not permit customers to identify the telephone number for calls being made from a pay telephone, by credit card, or by operator assistance.
On September 22, 1989, the ALJ issued his Recommended Decision finding that Caller*ID was not in the public interest unless Bell provided a "per-call" blocking option which is already built into the system. Bell's proposal did not include the blocking option recommended by the ALJ which would permit customers to block transmission of their telephone numbers prior to placing a call. The ALJ determined that Caller*ID was a "trap and trace device" as defined by the Wiretap Act and that only by offering the blocking mechanism could Caller*ID become lawful under that statute.
The Commission entered its order on November 9, 1989 rejecting the ALJ's Recommended Decision and permitting Bell to provide Caller*ID to its customers, but with the added requirement that Bell provide free subscription or per-call blocking at the customers' discretion for (a) private, non-profit, tax-exempt, domestic violence intervention agencies; (b) home telephones of staff members of such agencies whose personal safety may be at risk although such individuals must be certified by the head of the agency and re-certified annually; (c) federal, state and local law enforcement agencies; and (d) individuals for whom a duly authorized representative of a federal, state or local law enforcement agency has certified a need for blocking to reduce the risk of personal injury. Such individuals must also be recertified annually. The Commission did not order that blocking be made available for any other individuals. Bell filed a new tariff on November 18, 1989 in compliance with the Commission's order, and this tariff was approved by the Commission on November 30, 1989.
Initially, Petitioners argue that Caller*ID violates Section 5771(a) of the Wiretap Act, 18 Pa. C.S. § 5771(a), which states as follows:
(a) General Rule.--Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 5773 ().
Section 5702, 18 Pa. C.S. § 5702, defines a trap and trace device as [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 Wiretap Act does however except certain forms of transmission from its provisions:
(b) Exception.--The prohibition of subsection (a) does not apply with respect to the use of a pen register or a trap and trace device by a provider of electronic or wire communication service:
(1) relating to the operation, maintenance and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of the service from abuse of service or unlawful use of service; or
(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service toward the completion of the wire communication or a user of the service from fraudulent, unlawful or abusive use of service, or with the consent of the user of the service.
18 Pa. C.S. § 5771(b).
An historical perspective upon enactment of Pennsylvania's Wiretap Act will be useful for...
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