Southern Bell Tel. and Tel. Co. v. Hamm
| Decision Date | 20 May 1991 |
| Docket Number | No. 23488,23488 |
| Citation | 409 S.E.2d 775,306 S.C. 70 |
| Court | South Carolina Supreme Court |
| Parties | , 60 USLW 2294, 126 P.U.R.4th 535, Util. L. Rep. P 26,128, 9 A.L.R.5th 1131 SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Respondent, v. Steven W. HAMM, The South Carolina Department of Consumer Affairs, and the Public Service Commission of South Carolina, Defendants, of whom Steven W. Hamm, Consumer Advocate for the State of South Carolina is Appellant. . Heard |
Steven W. Hamm, Raymon E. Lark, Jr., and Elliott F. Elam, Jr., all of S.C. Dept. of Consumer Affairs, Columbia, for appellant.
Fred A. Walters, of Southern Bell Tel. and Tel. Co., and A. Camden Lewis and Costa M. Pleicones, of Lewis, Babcock, Pleicones & Hawkins, Columbia, for respondent.
Marsha A. of Ward, S.C. Public Service Com'n, Columbia, for defendants.
Consumer Advocate Steven W. Hamm (Hamm) appeals the circuit court's ruling that Southern Bell's Caller ID service does not violate either S.C.Code Ann. § 17-29-20 (1991 Supp.) 1 (a part of South Carolina's Trap and Trace Law) or the Constitutions of the United States and State of South Carolina. We affirm.
Caller ID is an optional service by which Southern Bell customers may purchase a device for their telephones that, upon subscription to the service, will reveal the telephone numbers of incoming calls as soon as the phone begins to ring. The device may also be programmed to store a list of numbers that have attempted to connect with a subscriber's telephone number.
On December 6, 1989, Southern Bell filed an application with the South Carolina Public Service Commission (PSC) for revisions to its General Subscriber Tariff for the purpose of obtaining permission to offer the service. On December 15, 1989, Hamm moved to intervene and was made a party.
On March 1, 1990, Hamm moved for a continuance in order to require Southern Bell to conduct a customer survey and conform its proposed revisions to § 17-29-20, alleging that the service as proposed would violate § 17-29-20 unless all callers had the option to block the display of their numbers. The PSC denied the motion.
A public hearing was held on March 14, 1990. On April 19, 1990, the PSC issued Order No. 90-428, approving the tariff for provision of Caller ID. The Order permitted some law enforcement agencies and crisis centers to block reception of their numbers by service subscribers.
On April 30, 1990, Hamm filed a Petition for Rehearing and Reconsideration, alleging that the PSC had failed to rule on whether Caller ID violated § 17-29-20. In response to the motion, the PSC issued Order 90-530 in which it asserted that it was not the proper body to decide that issue.
On May 30, 1990, Hamm filed a Motion for Stay of Order in which he asked that the implementation of the service be delayed. The PSC, by Order dated June 7, 1990, granted the motion until the legality of the service could be established in the proper forum. To that end, Southern Bell filed the complaint in this action, seeking declaratory judgment on the issue whether Caller ID violated § 17-29-20 and the United States and South Carolina Constitutions.
A nonjury trial was held on September 7, 1990. The trial judge held that Caller ID does not violate § 17-29-20 or any federal or state constitutional provisions. This appeal ensued. We affirm the trial judge's excellent order and incorporate portions of it into this opinion.
The trial judge found that Caller ID does not violate § 17-29-20 because it falls under the exclusions set forth in the statute. We agree.
Section 17-29-20(B)(1) and (2) provides that a person may install a trap and trace device if it is used to protect the user from abuse of or unlawful use of telephone service. Based upon the evidence in the record, there can be no doubt that Caller ID service is designed to protect the utility's subscribers from abusive or unlawful telephone calls. Similarly, the service will aid a user of the service from being subjected to fraudulent, unlawful or abusive use of telephone service.
Even if Caller ID service does not fall within the exceptions contained in § 17-29-20(B)(1) or (2), Subsection (3) of § 17-29-20(B) exempts the use of trap and trace devices where the consent of the user of the service has been obtained. In the case of Caller ID, the "user" would be the subscriber to the service.
Hamm argues that our Trap and Trace Statute requires the consent of both the calling and called parties and cites a recent Pennsylvania Commonwealth Court decision interpreting a purportedly identical statutory scheme. See, Barasch v. Pennsylvania Public Utility Commission, 133 Pa.Cmwlth. 285, 576 A.2d 79 (Pa.1989). Barasch, however, can be distinguished from this case because Pennsylvania's Wiretapping Act is different from South Carolina's Trap and Trace Law in two important ways.
First, 18 Pa.C.S.A. § 5704(4) provides an exception to interception of wire communications only "... where all parties to the communication have given prior consent to such interception." (emphasis added). No parallel provision is to be found in any South Carolina statute. Rather, § 17-29-20(B)(3) provides that the use of a trap and trace device is permitted with the consent of the user. The choice of the singular term "user," must, in this context, be understood to refer to the consent of the person being called, i.e., the subscriber. Nowhere in the South Carolina Act is the term "all parties" utilized by the General Assembly so as to require both parties to consent. 2
Second, Pennsylvania has an extensive statutory scheme from which it was necessary for the Pennsylvania legislature to specifically exempt police and emergency communications (i.e., 911/E911 services) as an exception to the "all party consent" rule. 18 Pa.C.S.A. § 5704(3). Again, the South Carolina General Assembly did not include such a provision when it enacted this statute. This is significant because, since January 1, 1984, Southern Bell has provided a "911" emergency service to its customers. When the General Assembly enacted the Trap and Trace Law, it did so knowing of the existence of that 911 service. Yet, it did not deem it necessary to provide an express exception in that statute, as had the Pennsylvania Legislature.
Indeed, if Hamm's argument were carried to its logical conclusion, "911" emergency service, which technically functions the same as Caller ID, would violate South Carolina's trap and trace law. In both services, the calling party's telephone number is passed to a third party without his or her prior express consent. The absence of any "911" related exception in the South Carolina Act evidences further that the South Carolina Legislature did not intend for tariffed services of a utility to be violative of the South Carolina Trap and Trace Act. A careful reading of Barasch clearly reveals the significant differences between the Pennsylvania statutory scheme and the South Carolina statute. This Court therefore rejects Hamm's contention that Southern Bell's Caller ID service as approved by the PSC violates § 17-29-20.
Hamm argues that such a construction would render § 17-29-20 meaningless. This is not correct. Reference to the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510, which mandated passage of South Carolina's statute, and to reports issued by the Judiciary Committees of both the House (H.Rep. 99-647) and Senate (S.Rep. 99-541), U.S.Code Cong. & Admin.News 1986, p. 3555 indicates that the purpose behind the federal law was to increase privacy protections afforded to citizens. The Electronic Communications Privacy Act was passed to extend federal and state statutory protection to unwarranted intrusion through the use of pen registers and trap and trace devices because of the United States Supreme Court's holdings in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), that those devices do not violate the Fourth Amendment and could be installed by a law enforcement agency without a warrant.
It is clear that what our legislature sought to do, in enacting §§ 17-29-10 to 50, was to protect the citizens of South Carolina from abusive, unauthorized and unwarranted third party or governmental intrusion by prohibiting the unauthorized use by such parties of trap and trace or pen register devices without first obtaining a court order. The use of Caller ID does not contravene that goal.
Hamm argues that the trial court erred in rendering judgment on the constitutional issue because such an analysis was "purely advisory" in light of the holding that Caller ID did not violate § 17-29-20. We disagree.
The trial court found that analysis of the constitutional issues was proper because "Southern Bell's prayer for relief asked the Court to declare Caller ID service to be in concert with the South Carolina and United States Constitutions...." In paragraph 25 of its Second Amended Complaint, Southern Bell requested the trial court to "inquire into the matters alleged above and declare Caller ID to be legal, and in compliance with S.C.Code Sections 17-29-10, et seq. and the South Carolina and United States Constitutions." (emphasis added). Thus, we find that the trial court properly considered the issue. In any event, since this issue would be raised to the Court at some future time and since both parties have fully briefed the issue, we find that it is in the interest of judicial economy to decide the matter now.
Before deciding whether the service is violative of constitutional rights of privacy, however, we must first determine that the actions of the South Carolina PSC rose to the level of "state action" as, absent that involvement, the constitutional right to privacy does not attach...
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