568 A.2d 726 | Pa. Commw. Ct. | 1989
OPINION
The Pennsylvania Coalition Against Domestic Violence and Mary Jane Isenberg (Coalition) and David M. Barasch, Consumer Advocate (Barasch), have filed a joint application for a partial stay pending appeal seeking, in the alternative, (1) an injunction pending appeal prohibiting the intervenor Bell Telephone Company of Pennsylvania (Bell) from offering Caller ID service to the general public unless a blocking option is also offered, or (2) a partial stay pending appeal limiting Caller ID service to emergency service providers. Similar applications were filed by Barry Steinhardt, the American Civil Liberties Union of Pennsylvania (ACLU), and the Consumer Education and Protective Association and Carol Walton (CEPA); a hearing on all three applications
In the underlying proceeding, the Commission rejected the recommendation of Administrative Law Judge Michael Schnierle and entered an order directing Bell to offer Caller ID service to the general public. Caller ID allows a subscriber to identify the telephone number from which a call
The applicants contend that they have established the prerequisites for the granting of their requested relief under Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983). Under Process Gas, this Court may grant a stay if the applicants make a strong showing that they are likely to prevail on the merits; if they show they will suffer irreparable injury without the stay; and if the stay will not substantially harm other interested parties or adversely affect the public interest. Moreover, in announcing the Process Gas standard, the Pennsylvania Supreme Court specifically stated that when confronted with a case in which the latter three factors strongly favor interim relief a court may exercise its discretion to grant a stay if the applicant has made a substantial case on the merits. Id.
The applicants argue that they are likely to succeed on the merits because Bell’s Caller ID violates Section 5771(a) of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act),
Applicants next argue that absent a stay, irreparable harm will result to the individuals described in the Commission’s order who are eligible for Caller ID blocking certification. This order granted total blocking privileges to federal, state, and local law enforcement organizations and nonprofit domestic violence intervention agencies. It also provides that law enforcement authorities may certify domestic abuse and violent crimes victims, witnesses and abuse agencies workers as eligible for this blocking device in their homes.
Although the Commission’s safeguards disclose an underlying empathy for such individuals, they do not mitigate applicants’ irreparable harm. The record is entirely devoid
Finally, the applicants contend that granting the stay will not substantially harm other interested parties or the public interest. This Chancellor agrees. If the applicants’ requested partial stay is granted, Bell may nevertheless begin distribution of Caller ID to emergency service providers and law enforcement agencies. This option will preserve the life-saving benefits of Caller ID. Of course, vindication of the important privacy rights of this Commonwealth’s citizens will be ultimately determined on appeal. In the interim, granting a stay will protect those privacy rights to the extent the legislature has sought to preserve them by enacting the Wiretap Act.
Accordingly, applicants’ request for a partial stay pending appeal limiting Caller ID to emergency service providers is granted.
ORDER
(Nos. 2268, 2270, 2324 and 2371 C.D.1989)
Upon consideration of the petitioners’ joint application for partial stay and respondent’s answer thereto, it is ordered that said application is granted. The order of the Pennsylvania Public Utility Commission entered November 9, 1989, at R-891200 et al., is stayed insofar as it permits the Bell Telephone Company of Pennsylvania to provide Caller ID service to entities or individuals other than police departments, fire departments or county emergency dispatch centers. Such emergency service providers may subscribe to and utilize Caller ID service provided that their use complies with the provisions of 18 Pa.C.S. § 5704(3).
. By Order dated December 15, 1989, respondent Public Utility Commission’s (Commission) motion to quash these applications was denied.
. The Coalition, Barasch, the ACLU and CEPA will be referred to collectively as applicants.
. 18 Pa.C.S. §§ 5701-5781.
. The Wiretap Act defines "electronic communication" as "[a]ny transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system----” 18 Pa.C.S. § 5702.
. That section reads in part:
(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:
(2) to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider ... or a user of the service from fraudulent, unlawful or abusive use of service, or with the consent of the user of the service.
(Emphasis added.)
. Applicants presented the affidavit of Barbara Hart, a representative of the Pennsylvania Coalition Against Domestic Violence, who testified that Caller ID would only help facilitate an abuser’s obsession with maintaining control over his or her abused spouse. Ms. Hart stated that although approximately 800,000 individuals are subject to domestic abuse in Pennsylvania annually, less than ten percent choose or are able to obtain shelter with a domestic abuse agency. Rather, the majority of these individuals seek shelter at the house of family or friends. Moreover, this testimony also disclosed that women who receive advice or protection in a domestic abuse shelter are still at risk because Caller ID not only facilitates eventual identification of the shelter but also the spouse who is in communication with outside counseling. Also in the record is testimony that undercover law enforcement officials would be put in life-threatening situations if Caller ID were available to the public. A suspected criminal who subscribed to Caller ID would instantly know the telephone number and, through the use of a “reverse telephone directory,” could discover the undercover agent's home or operation’s address.