PUBLISHED OPINION
Case No.: 95-2438
† Petition
for review filed.
Complete
Title
of
Case:
WISCONSIN
PROFESSIONAL POLICE ASSOCIATION; WISCONSIN LAW ENFORCEMENT OFFICERS'
ASSOCIATION; TERRY PERRY, COORDINATOR, CITY OF MILWAUKEE COMMON COUNCIL TASK
FORCE ON SEXUAL ASSAULT AND DOMESTIC VIOLENCE; ROBERT OVERS; LESLIE BIRD,
EXECUTIVE DIRECTOR, DANE COUNTY ADVOCATES FOR BATTERED WOMEN; MICHAEL HANRAHAN;
BECKY WESTERFELT, EXECUTIVE DIRECTOR, RAPE CRISIS CENTER, DANE COUNTY; KATHLEEN
KRENEK, POLICY DEVELOPMENT COORDINATOR, WISCONSIN COALITION AGAINST DOMESTIC
VIOLENCE; DAVID ROSSOW; RUTH ROBARTS, EXECUTIVE DIRECTOR, 1199W/UNITED
PROFESSIONALS FOR QUALITY HEALTH CARE/SEIU; CAROLE SMOLIZER; WISCONSIN
ASSOCIATION OF PERSONNEL SERVICES; FRANK EVANS; COMPUTER PROFESSIONALS FOR
SOCIAL RESPONSIBILITY; TERESA MEUER, COORDINATOR, WISCONSIN CRIME VICTIM'S
COUNCIL; CITIZENS UTILITY BOARD; ANNE BALDWIN; NANCY BOSIN; MARIA GALE BEYER;
GORDON LIPSKY; KEN MCFADDEN; SALLY SCHMID; RAECHEL FOERTSER; AND DON SCHWAMB,
Petitioners-Respondents,†
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN,
Respondent-Co-Appellant,
WISCONSIN BELL, INC.,
Intervenor-Appellant.
Oral
Argument: June 25, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: September 30, 1996
Opinion
Filed: September
30, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dane
(If
"Special" JUDGE: Moria
Krueger
so
indicate)
JUDGES: Dykman,
P.J., Vergeront, J., and Robert D. Sundby, Reserve Judge
Concurred:
Dissented:
Appellant
ATTORNEYSFor the respondent-co-appellant the
cause was submitted on the briefs of Steven M. Schur and Steven
Levine of the Public Service Commission of Wisconsin and orally
argued by Steven Levine.
For the intervenor-appellant the cause was submitted on the
briefs of Michael A. Green and Michael Paulson of Milwaukee and
orally argued by Michael Paulson.
Respondent
ATTORNEYSFor the petitioners-respondents the
cause was submitted on the brief of Lynn Adelman and Jon Deitrich
of Adelman, Adelman & Murray, S.C. of Milwaukee and orally argued by
Lynn Adelman.
COURT OF
APPEALS DECISION DATED AND
RELEASED September
30, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-2438
STATE OF WISCONSIN IN
COURT OF APPEALS
WISCONSIN
PROFESSIONAL POLICE ASSOCIATION;
WISCONSIN
LAW ENFORCEMENT OFFICERS' ASSOCIATION;
TERRY
PERRY, COORDINATOR, CITY OF MILWAUKEE COMMON
COUNCIL
TASK FORCE ON SEXUAL ASSAULT AND DOMESTIC
VIOLENCE;
ROBERT OVERS; LESLIE BIRD, EXECUTIVE
DIRECTOR,
DANE COUNTY ADVOCATES FOR BATTERED
WOMEN;
MICHAEL HANRAHAN; BECKY WESTERFELT,
EXECUTIVE
DIRECTOR, RAPE CRISIS CENTER, DANE
COUNTY;
KATHLEEN KRENEK, POLICY DEVELOPMENT
COORDINATOR,
WISCONSIN COALITION AGAINST DOMESTIC
VIOLENCE;
DAVID ROSSOW; RUTH ROBARTS, EXECUTIVE
DIRECTOR,
1199W/UNITED PROFESSIONALS FOR QUALITY
HEALTH
CARE/SEIU; CAROLE SMOLIZER; WISCONSIN
ASSOCIATION
OF PERSONNEL SERVICES; FRANK EVANS;
COMPUTER
PROFESSIONALS FOR SOCIAL RESPONSIBILITY;
TERESA
MEUER, COORDINATOR, WISCONSIN CRIME
VICTIM'S
COUNCIL; CITIZENS UTILITY BOARD;
ANNE
BALDWIN; NANCY BOSIN; MARIA GALE BEYER;
GORDON
LIPSKY; KEN McFADDEN; SALLY SCHMID;
RAECHEL
FOERTSER; AND DON SCHWAMB,
Petitioners-Respondents,
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN,
Respondent-Co-Appellant,
WISCONSIN
BELL, INC.,
Intervenor-Appellant.
APPEAL
from an order of the circuit court for Dane County: MORIA KRUEGER,
Judge. Reversed.
Before
Dykman, P.J., Vergeront, J., and Robert D. Sundby, Reserve Judge.
DYKMAN,
P.J. The Public Service Commission of Wisconsin and Wisconsin
Bell, Inc. appeal from a circuit court order reversing the decision of the
commission to allow per-line blocking of Caller ID[1]
only on a limited basis and remanding the matter to the commission. The issues on appeal are: (1) whether the commission's decision
is supported by substantial evidence or is arbitrary or capricious; and
(2) whether the commission's decision violates the Federal Electronic
Communications Privacy Act (ECPA). We
conclude that the commission's decision is supported by substantial evidence,
is not arbitrary or capricious, and does not violate the ECPA. We therefore reverse.
BACKGROUND
Caller
ID allows a person receiving a telephone call to view the originating telephone
number of the call before answering the telephone. It operates under a generic computer program known as
"Signalling System 7" (SS7), which allows information associated with
a telephone call to be transmitted in the same "band" as the actual
call. In Caller ID, the accompanying
information is the call's originating telephone number.
Transmission
of a telephone number can be blocked in two ways: per-call blocking and per-line blocking. In per-call blocking, a caller can block
transmission of his or her telephone's number by dialing *67, or 1167 on a rotary
phone, for that call only. When a call
is blocked in per-call blocking, the letter "P" or the word
"private" appears on the Caller ID screen of the phone call
recipient. In per-line blocking, the
telephone number is blocked from transmission on every call from a blocked line
unless the user dials *67 to disable the block for a particular call.[2]
On
May 5, 1992, Wisconsin Bell applied to the commission for authority to offer
Caller ID in selected exchanges within its local exchange network.[3] On May 27, 1992, the commission decided to
investigate the conditions of service that could apply to Caller ID. On June 1, 1992, a coalition of Wisconsin
citizens, consumer groups and advocacy organizations intervened, asking the
commission to condition its approval of Caller ID upon the availability of free
per-line blocking for anyone requesting it.
The
commission conducted several hearings between February and August of 1993. On April 28, 1994, the commission approved
the Caller ID service proposed by Wisconsin Bell. The commission's order provided that free per-call blocking must
be provided on every access line in an exchange where Caller ID is offered
unless it is not feasible to do so.[4] However, the commission did not require the
utilities to offer free per-line blocking to any subscriber requesting the
service. Instead, the commission
ordered the utilities to provide free per-line blocking on an optional basis to
selected subscribers: (1) victims
of domestic violence, shelters and other organizations serving victims of
domestic violence and other public safety agencies; (2) any person
protected by an injunction, temporary restraining order, or other court order
relating to domestic abuse, harassment or child abuse; (3) any municipal,
county, state or federal law enforcement agency, fire department, public social
service agency or parole office; and (4) the residential access line of
any staff member employed by an eligible organization or any residential access
line designated by an eligible organization as serving a victim of domestic
violence.
Respondents
appealed the decision to the circuit court under Chapter 227, Stats., challenging those aspects of
the commission's order that limit the availability of per-line blocking. The circuit court reversed the commission's
order as it applied to per-line blocking and remanded the matter to the
commission for a redetermination of its decision. The commission and Wisconsin Bell appeal.
LIMITED
LINE-BLOCKING
Under
§ 196.207(2), Stats., the
commission may not approve a schedule or tariff that permits Caller ID to be
offered unless the schedule or tariff meets certain conditions. Under § 196.207(2)(e), a schedule or tariff
must offer free per-line blocking to victims of domestic violence protected by
a court order, domestic violence victim's service programs, and battered
women's shelters or other organizations that provide a safe haven for victims
of domestic violence. The commission's
order satisfied this condition.
Section 196.207(2m),
Stats., gives the commission
discretion to order that telecommunications utilities offer per-line blocking
on a broader scope:
Per line blocking. Under any schedule or tariff that the
commission approves, the commission may require that a telecommunications
utility that offers a telephone caller identification service to permit an
access line customer to choose to withhold the customer's access line
identification from identification for all calls originating from the
customer's access line.
The
commission did not order the telecommunications utilities to offer per-line
blocking universally, but instead limited its availability to a few defined
groups. Respondents challenge both the
commission's factual findings and its discretionary decision to order that
per-line blocking be offered only on a limited basis. We review the decision of the agency and not the decision of the
trial court. Liberty Trucking Co.
v. DILHR, 57 Wis.2d 331, 342, 204 N.W.2d 457, 463-64 (1973).
Substantial
Evidence Test
We
review the agency's factual findings pursuant to § 227.57(6), Stats., under which we will "set
aside agency action or remand the case to the agency if [we find] that the
agency's action depends on any finding of fact that is not supported by
substantial evidence in the record."
Substantial evidence does not mean a preponderance of the evidence. Madison Gas & Elec. Co. v. Public
Serv. Comm'n, 109 Wis.2d 127, 133, 325 N.W.2d 339, 342 (1982). Rather, the substantial evidence test is
satisfied when reasonable minds could arrive at the same conclusion as the
commission when taking into account all evidence in the record. Id. at 133, 325 N.W.2d at
342-43. We do not judge the credibility
of witnesses or weigh the evidence. Shoreline
Park Preservation, Inc. v. Wisconsin Dep't of Admin., 195 Wis.2d 750,
761, 537 N.W.2d 388, 391-92 (Ct. App. 1995).
We will set aside the commission's findings only if a reasonable person
could not have made the findings from the evidence. Daly v. Natural Resources Bd., 60 Wis.2d 208, 220,
208 N.W.2d 839, 846 (1973), cert. denied, 414 U.S. 1137 (1974).
The
commission made what it characterized as "three important findings,"
and respondents challenge each of these findings as not supported by
substantial evidence. We will address
each finding in turn.
The
commission's first important finding reads as follows:
[T]he Commission finds that [Caller ID] can accomplish
important public interest functions, such as discouraging harassing and prank
telephone calls, providing both a list and a verification of the telephone
numbers of callers, and assisting law enforcement and public safety agencies.
With
regard to the effectiveness of Caller ID in discouraging harassing and prank
telephone calls, Kathryn Conrow of Wisconsin Bell testified:
Based on the experience of other Ameritech companies
where Caller ID is available, the Company believes Caller ID will reduce the
number of obscene, prank, and harassing calls received by our customers. Michigan, Illinois, and Indiana Bell have
all experienced a reduction in the number of complaints received by their
annoyance call bureaus. In New Jersey,
authorities reported a dramatic decrease in obscene, prank and harassing calls
attributable to the mere offering of Caller ID.
Conrow also testified that Caller ID can provide a list
of telephone numbers along with the date and time of the call. With respect to phone number verification,
Tom Anderson of Domino's Pizza testified that after subscribing to Caller ID in
New Jersey, Domino's Pizza experienced a ninety percent reduction in
undeliverable orders and a substantial decrease in the number of driver
robberies. Caller ID can also be used
by public safety personnel to identify the number of the telephone from which
an emergency call was placed in areas not served by enhanced 911 or when the
emergency call was not placed to 911.
Based on the evidence, we conclude that a reasonable person could have
made the commission's first important finding.
In
support of their argument that the commission's first finding is not supported
by substantial evidence, respondents contend that there are ways more effective
than Caller ID to prevent harassing calls, to screen calls and to authenticate
calls. However, this assertion does not
refute the commission's findings; rather, it only states that Caller ID may not
be the most effective method to accomplish these goals. The fact that other mechanisms may be more
effective than Caller ID is not relevant to the issue of whether the
commission's findings are supported by substantial evidence.
Respondents
also attempt to discredit as speculation the testimony of several people who
expressed the belief that Caller ID could have helped them avoid
harassment. Assuming, arguendo,
that the commission should not have considered this testimony, its finding is
still reasonable based on the other testimony.
The
commission's second important finding reads as follows:
[T]he Commission concludes that at present there does
not exist a general societal expectation or norm that a person placing a
telephone call has the right to remain anonymous or refuse to identify him or
herself to the called party. To the
contrary, a visitor in person or by telephone is generally expected to provide
his or her identity prior to being offered admittance to another's home.
In
support of this second finding, Conrow testified:
In
market research conducted in Wisconsin, 80% of the customers surveyed stated
that they had made no calls within the previous thirty days where they would
not have wanted to have their telephone number displayed to the called
party. Of the 20% that indicated a
desire not to disclose their number, 56% stated that they would have blocked
their number on fewer than 10% of their outgoing calls. Only 12% of the 20% (2.4% of the total)
indicated a desire to block their number at all times....
... The normal
treatment of a telephone number is to have it listed in the directory and
available from directory assistance.
The omission of a number from the directory and from directory
assistance is the exception, not the rule; hence the charge for non-listed and
non-published numbers in Wisconsin Bell's tariff. State law also favors disclosure of the identity of parties to a
call; it is a misdemeanor under Sec. 947.012(5) of the Statutes[5]
for a person to make a telephone call without disclosing his or her identity.
In addition, Dennis Klaila, a commission rate analyst,
testified that he did not believe an expectation of privacy exists regarding
the disclosure of a calling party's telephone number to the called party.[6] Based on the testimony, we conclude that a
reasonable person could have made the commission's second important finding.
Respondents
argue that the commission's finding that a calling party has no reasonable
expectation of privacy was based solely on the testimony of Klaila. Respondents maintain that no deference
should be given to the testimony of Klaila because he was rendering a legal
opinion on legislation and the constitution and has no experience in
constitutional or privacy rights.
Respondents argue that we should instead rely on Dr. Francis Collins, a
consultant in various areas of telecommunications, and Dr. Rohan Samarajiva, a
communications professor at Ohio State University, who both testified that
Caller ID drastically departed from historical norms of privacy. In support of their argument, respondents
cite DeRosso Landfill Co. v. City of Oak Creek, 191 Wis.2d 46,
63, 528 N.W.2d 468, 475 (Ct. App. 1995), rev'd on other grounds, 200
Wis.2d 642, 547 N.W.2d 770 (1996), which states that "deference is not
given [to an agency's interpretations of the statutes under which it operates]
when that interpretation is founded upon nothing but the opinions of the
agency's subordinate employees."
We
disagree with respondents' argument for two reasons. First, the commission's finding was supported by testimony other
than the testimony of Klaila. Second,
respondents are not challenging the commission's decision on constitutional
grounds, and therefore the commission need not have disregarded Klaila's
testimony solely because of his lack of expertise in constitutional privacy
rights.[7]
The
commission's third important finding reads as follows:
[T]he record indicates that there are some unique
situations where Caller ID could well present a danger, such as to domestic
abuse victims and law enforcement personnel.
To prevent such problems, the Commission will require the applicant
utilities to provide free-of-charge blocking [on a limited basis].
Respondents
do not appear to dispute the first sentence of this finding, but rather seem to
advocate universally available per-line blocking because Caller ID could
present a danger in certain situations.
Therefore, we will not review this finding.
Respondents
do argue that the commission's finding that limited per-line blocking would
prevent the dangerous situations Caller ID might create was not supported by
substantial evidence. To characterize
the second sentence of the commission's third finding as a finding of fact is
erroneous, however. This sentence does
not make factual findings, but sets forth the commission's decision to require
per-line blocking on a limited basis and explains that per-line blocking will
be offered on a limited basis to prevent problems in some unique
situations. Because this sentence does
not make findings of fact, we will not review it under the substantial evidence
test. See § 277.57(6), Stats.
Respondents
also argue that the commission's finding that the benefits of Caller ID were so
substantial as to justify denying most people the choice of per-line blocking
was not supported by substantial evidence.
Again, we review only an agency's factual findings under the substantial
evidence standard. See
§ 277.57(6), Stats. The commission's decision to offer per-line
blocking on a limited basis was not a factual finding, but a discretionary
decision. Therefore, we will not
consider whether the commission's decision was supported by substantial evidence;
rather, we will review the commission's decision under the arbitrary and
capricious standard. See Wisconsin
Cent. Ltd. v. Public Serv. Comm'n, 170 Wis.2d 558, 568, 490 N.W.2d 27,
31 (Ct. App. 1992).
Arbitrary
and Capricious Test
Respondents
argue that the commission's rationale for denying the option of per-line
blocking to most consumers was so unconvincing as to be arbitrary and
capricious. In § 196.207(2m), Stats., the legislature delegated to
the commission the decision whether to extend the availability of per-line
blocking beyond the groups listed in § 196.207(2)(e). We review an agency's discretionary decision under
§ 227.57(8), Stats.[8] We may not substitute our judgment for that
of the commission on an issue of discretion; rather, we review the commission's
decision to determine whether it is arbitrary or capricious. Wisconsin Cent. Ltd. v. Public Serv.
Comm'n, 170 Wis.2d 558, 568, 490 N.W.2d 27, 31 (Ct. App. 1992). Arbitrary or capricious conduct lacks a
rational basis and is the result of an unconsidered, willful or irrational
choice rather than a "sifting and winnowing" process. Robertson Transp. Co. v. Public Serv.
Comm'n, 39 Wis.2d 653, 661, 159 N.W.2d 636, 640 (1968).
Respondents
argue that the decision was arbitrary and capricious because the commission
admitted that the "extent to which a reduction in abusive and harassing
calls depends on limiting the availability of per-line blocking is not known." Respondents also argue that per-call
blocking does not adequately protect individuals with nonlisted and
nonpublished numbers, privacy expectations, and vulnerable groups.[9] Thus, respondents argue, the decision is
contrary to the commission's purpose to protect the consuming public. See Wisconsin's Envtl. Decade,
Inc. v. Public Serv. Comm'n, 81 Wis.2d 344, 351, 260 N.W.2d 712, 715-16
(1978).
Under
§ 227.57(8), Stats.,
however, the commission's discretionary decision did not need to be supported
by statistical data showing the effectiveness of limited per-line blocking on
reducing harassing calls, nor did it need to establish that limited per-call
blocking was the most effective method of protecting certain groups and privacy
interests. Instead, the commission's
decision must have a rational basis. Robertson
Transp., 39 Wis.2d at 661, 159 N.W.2d at 640.
The
commission's order shows that its decision to offer per-line blocking on a
limited basis was not arbitrary or capricious.
The commission provided the rationale for its decision:
The Commission
finds that the requirement for dialing a blocking signal each time a calling
party dials a telephone number properly balances the calling party's need for
anonymity against the public's interest in responsible use of the telephone
network. The central issue in this
docket is whether the calling party should be able to remain anonymous while
intruding on the solitude of the called party.
Per-call blocking resolves this issue by allocating the burden of labor
and expense related to withholding identification to the calling party. The Commission finds that this labor and
expense is an appropriate means to ensure that the blocking option is employed
in rough proportion to the calling party's actual need for anonymity and
preserves the principal benefit of the service, which is a reduction in the
incidence of abusive and harassing calls.
The
commission's order indicates that its decision was not the result of an
unconsidered, willful or irrational choice.
Rather, by weighing the interests of the "calling party" and
the "called party," both members of the consuming public, the
commission engaged in a "sifting and winnowing" process. Therefore, its decision was not arbitrary or
capricious.
Respondents
argue that the commission's decision with respect to per-line blocking is
inconsistent with decisions in many states.
But when determining whether the commission properly exercised its
discretion, we are to review the facts presented at the hearing before the
commission, not the decisions of other jurisdictions. See § 227.57(6), Stats. The fact that other jurisdictions may have
come to a different conclusion, therefore, is irrelevant.
Respondents
also maintain that the commission's order provides no appeal procedure, but
fail to state why this would make the commission's decision arbitrary and
capricious. Nonetheless, the statutes
do provide an appeal procedure. Under
§ 196.26, Stats., if any
body politic, municipal organization or twenty-five persons file a complaint
with the commission that any schedule, regulation, act or practice relating to
the provision of telephone service is unreasonable, inadequate, unjustly
discriminatory or cannot be obtained, the commission may investigate the
complaint as it deems necessary. Thus,
if a group believes that a telephone utility unjustly denied per-line blocking
from its members, it may file a complaint with the commission. Further, administrative decisions that
adversely affect the substantial interests of any person, whether by action or
inaction, are subject to judicial review.
Section 227.52, Stats.
FEDERAL
ELECTRONIC COMMUNICATIONS PRIVACY ACT
Respondents
argue that without a per-line blocking option, Caller ID violates the Federal
Electronic Communications Privacy Act (ECPA), which provides in relevant part:
(a) In
General.—Except as provided in this section, no person may install or
use a ... trap and trace device without first obtaining a court order ....
(b) Exception.—The
prohibition of subsection (a) does not apply with respect to the use of a ...
trap and trace device by a provider of electronic or wire communication
service—
....
(3) where the
consent of the user of that service has been obtained.
18 U.S.C. § 3121.
The parties agree that Caller ID uses a "trap and trace
device"[10] within the
meaning of the statute. They disagree,
however, as to whether Caller ID falls within the exception of § 3121(b)(3).
Respondents
first argue that individual subscribers, not the telephone company, use Caller
ID. Therefore, respondents contend, the
exception does not apply to Caller ID because the exception only applies with
respect to "the use of a trap and trace device by a provider" of
telecommunications services. See
18 U.S.C. § 3121(b).
In
support of their argument, respondents cite Barasch v. Bell Tel. Co.,
605 A.2d 1198 (Pa. 1992), in which the Pennsylvania Supreme Court determined
that Caller ID violated Pennsylvania's Wiretapping and Electronic Surveillance
Control Act, 18 Pa. Cons. Stat.
§§ 5701-5781. Section 5771(b)(2) of
Pennsylvania's Act, like the ECPA, permitted the use of a trap and trace device
"by a provider of electronic or wire communication service ... with the
consent of the user of the service."
The court maintained that the "most obvious flaw in [the argument
that Caller ID falls within this exception], of course, is that the [Caller ID]
subscriber is not an electronic or communicating service provider." Barasch, 605 A.2d at 1202.
Although
the Pennsylvania court is correct in concluding that a Caller ID subscriber is
not an electronic or communicating service provider, we fail to see how this
assertion removes Caller ID from the exception. Section 3121(b) of the ECPA provides an exception to § 3121(a) in
certain situations "with respect to the use of a ... trap and trace device
by a provider of electronic or wire communication service." Therefore, under § 3121(b) the relevant
inquiry is not "is a Caller ID subscriber a telecommunications service
provider?" Rather, § 3121(b)
directs us to ask "is the trap and trace device used by a
telecommunications provider?"
In
answering this question, we find the reasoning of the Ohio Supreme Court in Ohio
Domestic Violence Network v. Public Utilities Comm'n, 638 N.E.2d 1012
(Ohio 1994), persuasive. In Ohio
Domestic Violence Network, the court considered whether Caller ID fell
within the exception to 18 U.S.C. § 3121(a).
The court concluded that the Caller ID display used by a subscriber was
not a trap and trace device; rather, the trap and trace device used in Caller
ID was provided by the equipment and software of the telephone company. The court reasoned:
Specifically, we agree that the Caller ID display unit
standing alone is incapable of performing a trap and trace apart from the
CCS/SS7 signalling equipment and software necessary to use it, and that it is
this equipment that performs the trap and trace.
Id. at 1021. Therefore, according
to the Ohio Supreme Court, because the telephone company's equipment and
software perform the trap and trace, it is the telecommunications service
provider, not the subscriber, who uses a trap and trace device within the
meaning of § 3121(b). We agree with
this reasoning.
Second,
respondents argue that 18 U.S.C. § 3121(b)(3), by providing that "the
consent of the user of that service" must be obtained, requires that both
the caller and the called consent to the trap and trace before the exception
applies. In Ohio Domestic
Violence Network, however, the court determined that the ECPA requires
"only that one party to a communication consent to its
interception." 638 N.E.2d at 1021.
In
addition, in Southern Bell Tel. & Tel. Co. v. Hamm, 409
S.E.2d 775 (S.C. 1991), the South Carolina Supreme Court came to the same
conclusion when construing a similar state statute. South Carolina's trap and trace law provides that no person may install
a trap and trace device unless "the consent of the user of that service
has been obtained." S.C. Code Ann. § 17-29-20(3) (Law.
Co-op. Supp. 1995). The Hamm
court determined that the singular term "user" must be understood to
refer to the consent of the person being called, i.e., the Caller ID
subscriber. 409 S.E.2d at 777. We agree with the reasoning of the Ohio and
South Carolina courts and conclude that only the Caller ID subscriber needs to
consent for the 18 U.S.C. § 3121(b)(3) exception to apply.
Respondents
argue that if we only require the consent of the Caller ID subscriber, we
render the ECPA meaningless because the Caller ID subscriber necessarily
consents to the trap and trace. Our
construction of the ECPA does not render it meaningless, however. The ECPA is designed to protect telephone
users from unauthorized third-party or governmental intrusions and is not
intended to protect telephone users from one another. See Hamm, 409 S.E.2d at 778. It is consistent with the ECPA's purpose to
require only that the Caller ID subscriber consent to the trap and trace.
By
the Court.—Order reversed.
[1] "Caller ID" refers to the
"caller identification service" defined in § 196.207(1)(c), Stats., as "a telecommunications
service offered by a telecommunications utility that identifies a telephone
line identification for an access line that is used by a person to originate a
telephone call to a subscriber to the service."
[2] The Public Service Commission ordered each
utility to implement a code other than *67 for unblocking per-line blocking, if
such a code becomes available, to eliminate potential confusion with the *67
per-call blocking feature.
[3] North-West Telephone Company and Sullivan
Telephone Company submitted similar applications on May 6, 1992.
[4] This condition is mandated by statute. Under § 196.207(2)(c), Stats., "The telecommunications
utility may not charge an access line customer for withholding the customer's
telephone line identification from identification on an individual call
basis."
[5] We assume that Conrow was referring to §
947.012(1)(c), Stats., which
provides: "Whoever does any of the
following is guilty of a Class B misdemeanor: ... Makes a telephone call,
whether or not conversation ensues, without disclosing his or her identity and
with intent to abuse or threaten any person at the called number." In addition, under § 947.012(2)(d),
"Whoever does any of the following is subject to a Class B forfeiture: ...
Makes a telephone call, whether or not conversation ensues, without disclosing
his or her identity and with intent to harass any person at the called number."
[6] In support of his conclusion, Klaila listed
the following factors:
(1) published and non-listed subscribers (whose telephone numbers
are available through directory assistance) have chosen to place their
directory listing in the public domain; (2) the disclosure of the calling
party's number to the called party routinely occurs with some interstate calls;
(3) the calling party's directory listing has not been recognized as
personal information in any state statute or commission regulation;
(4) the commission has not considered and has not decided whether
non-published customers have a greater expectation of or right to privacy than
the general public; and (5) Caller ID discloses the calling party's
telephone number only to a limited audience (the called party) and is not
generally disclosed.
[7] Furthermore, several courts have already
ruled that there is no federal constitutional privacy right to protection from
disclosure of telephone numbers via Caller ID.
See California v. FCC, 75 F.3d 1350, 1361-62 (9th
Cir.), cert denied, 116 S. Ct. 1841 (1996); Ohio Domestic Violence
Network v. Public Utilities Comm'n, 638 N.E.2d 1012, 1019 (Ohio 1994); Southern
Bell Tel. & Tel. Co. v. Hamm, 409 S.E.2d 775, 779-80 (S.C. 1991).
[8] Section 227.57(8), Stats., provides as follows:
The court shall
reverse or remand the case to the agency if it finds that the agency's exercise
of discretion is outside the range of discretion delegated to the agency by
law; is inconsistent with an agency rule, an officially stated agency policy or
a prior agency practice, if deviation therefrom is not explained to the
satisfaction of the court by the agency; or is otherwise in violation of a
constitutional or statutory provision; but the court shall not substitute its
judgment for that of the agency on an issue of discretion.
[9] For example, Kathleen Krenek, policy development
coordinator for the Wisconsin Coalition Against Domestic Violence, Becky
Westerfelt of the Dane County Rape Crisis Center and Teresa Meuer, staff
attorney for the Wisconsin Crime Victims Council all opposed Caller ID without
per-line blocking; police officers advocated per-line blocking so they would
not need to use a per-call block when working undercover; and Stuart Levitan of
the Dane County Fair Housing Council testified that without per-line blocking,
Caller ID would lead to sophisticated red-lining techniques.
[10] "As used in this chapter [18 U.S.C. §§
3121 et seq.] ... the term `trap and trace device' means 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." 18
U.S.C. § 3127(4).