California Attorney General
The Attorney General of the State of California (Attorney General) supports the proposed adoption of a 0% error rate for users of predictive dialers. The state has a substantial interest in protecting the privacy rights of its residents, which, according to the Attorney General, includes the right to be free from receiving telephone calls initiated by telemarketers using predictive dialers that hang up when the consumer answers the phone. The Attorney General notes that the State of California considers the right to privacy so fundamental that it is expressly set forth in Article 1, section 1 of the California Constitution.
According to the Attorney General, the actions of California consumers suggest their strong desire to limit others' ability to call them. A nationwide survey found that the top 10 cities with the highest percentage of unlisted numbers were all in California. In 1996, the Legislature found that "[f]orty-two percent of Pacific Bell's residential telephone numbers are unlisted, even through there is a charge to do so." (Section 1 of Stats. 1996, c. 675 (S.B. 1035).)
The Attorney General states that because of the sheer volume of calls made by telemarketers, what may appear to be a small error rate results in an unacceptably high number of hang-up calls to Californians. Based on industry figures, the Attorney General estimates that as many as nine million hang-up calls were received by California residents in 1999. The 0% error rate will protect privacy rights of all residents and, according to the Attorney General, will safeguard vulnerable groups:
These rules will also protect California residents-especially former victims of domestic violence or stalking, elderly individuals, women who live alone or who live with young children, individuals who have had to obtain restraining orders for their own protection, individuals who live in high crime neighborhoods and former victims of home invasion crimes-from unnecessarily fearing that they are being targeted by burglars or stalkers who are calling to see if someone is home and then hanging up the telephone when it is answered. These individuals should be able to know when they should be legitimately concerned that they may be the target of criminal activity. Elimination of the false alarms created by predictive dialers is critical to preserving these individuals' sense of safety and security. Any error rate greater than zero will leave those individuals who are aware of the law prohibiting hang up calls wondering whether they have a legitimate reason to be concerned or whether they are receiving telemarketing calls that are part of the allowed "error rate." The proposed rules should not be modified to allow any error rate. (Attorney General Comments, at 6-7.)
The Attorney General supports the proposed record-keeping requirements as essential to law enforcement, stating that without such records it is difficult to identify parties responsible for hang-up calls initiated by predictive dialers.
In reply comments, the Attorney General supports the designation of this proceeding as quasi-legislative, noting that such proceedings are defined as those "that establish policy or rules (including generic ratemaking policies or rules) affecting a class of regulated entities, including those proceedings in which the Commission investigates rates or practices for an entire regulated industry or class of entities within the industry." (Rule 5(d), Rules of Practice and Procedure.) Citing California Supreme Court authority, the Attorney General states that while the Commission has the option of holding hearings in quasi-legislative proceedings under Pub. Util. Code § 1701.1, the Commission is not required to hold hearings. (San Diego Gas and Electric Company v. Superior Court of Orange County (a996) 13 Cal.4th 893, 950-951.)
The Attorney General opposes the error rate of 5% proposed by a number of parties, stating that an abandonment rate of 5% was in place at the time that AB 870 was adopted and was considered inadequate by the Legislature. Similarly, with a 0% error rate, the Attorney General states that there is no need for a definition of "acceptable error rate," as urged by other commenters. The Attorney General states that the proposed definitions have built-in lag time between the time the phone is answered and the time the consumer hears a response, thus frustrating the objectives of Section 2875.5. Responding to comments about the cost of the record-keeping requirements, the Attorney General argues that such concerns are unjustified in light of the importance of retaining information to ensure compliance with the statute.
