Telecommunications Regulatory Board v. CTIA-The Wireless Ass'n , 752 F.3d 60 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 12-2427
TELECOMMUNICATIONS REGULATORY BOARD OF PUERTO RICO;
SANDRA TORRES-LÓPEZ, in her official capacity as President
of the Telecommunications Regulatory Board of Puerto Rico;
VICENTE AGUIRRE-ITURRINO, in his official capacity as
Associate Member of the Telecommunications Regulatory Board
of Puerto Rico; NIXYVETTE SANTINI-HERNÁNDEZ, in her official
capacity as Associate Member of the Telecommunications
Regulatory Board of Puerto Rico; and ALEJANDRO GARCÍA-PADILLA,
in his official capacity as Governor of Puerto Rico,
Defendants, Appellants,
v.
CTIA - THE WIRELESS ASSOCIATION,
Plaintiff, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Kayatta,
Circuit Judges.
Robert F. Reklaitis, with whom Cynthia Fleming Crawford and
Leclair Ryan, were on brief for appellants.
Todd M. Hinnen, with whom John K. Roche and Perkins Coie LLP,
were on brief for appellee.
May 9, 2014
TORRUELLA, Circuit Judge. At issue in this case is a law
passed by the government of Puerto Rico to obtain information about
the owners of prepaid cell phones. The Puerto Rican government
passed the Act of Dec. 27, 2011, No. 280, 2011 P.R. Laws 2963
(codified at P.R. Laws Ann. tit. 27, §§ 531-539 (Supp. 2013)) (the
"Registry Act"), in order to combat the use of anonymous prepaid
cell phones for criminal purposes in Puerto Rico. The Registry Act
functions by requiring telephone companies and other sellers of
prepaid phones to provide information about the purchasers of such
phones to the government of Puerto Rico. The government then
compiles a registry with the names, numbers, and addresses of all
those who purchase prepaid cell phones in Puerto Rico.
The question before us is whether the Registry Act
conflicts with and is preempted by the federal Stored
Communications Act, 18 U.S.C. §§ 2701-2712 (the "SCA"), which
restricts the ability of wireless communications providers to
release customer information to governmental entities. After
careful consideration, we affirm the district court's finding that
the Registry Act is preempted by the SCA and that its enforcement
should be enjoined.
I. Background
A. The Registry Act
On December 27, 2011, Puerto Rico Governor Luis Fortuño
signed into law the Registry Act. According to the Act's
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explanatory statement, while many individuals legitimately purchase
prepaid phones to avoid signing burdensome contracts or paying for
unnecessary service, the criminal use of such phones has become
widespread in Puerto Rico. See Registry Act, pmbl.1 The Registry
Act was thus created to address the "problem . . . that the owners
of these mobile units, because they are pre-paid, are not
registered by the various companies, making it impossible for the
authorities to track down their owners" in the event the phone is
used to commit a criminal offense like extortion. Id.
To combat this problem, the Registry Act instructs the
Telecommunications Regulatory Board of Puerto Rico (the "Board"),
a government agency tasked with regulating telecommunications
services in Puerto Rico, to create and maintain a registry of
prepaid cell phone numbers. Id. §§ 3-5. To ensure that the Board
is provided with the information it needs to create a registry, the
Act requires that:
Every telephone company, natural or legal
person, or business entity that sells a pre-
paid mobile telephone unit shall require photo
identification at the time of purchase and
shall register with the Board the name and
physical and postal address of the owner of
1
All references to the Registry Act in this opinion are based on
an English-language translation of the Act used by the parties in
the proceedings below and again on appeal. Although the Puerto
Rico Legislative Assembly has yet to provide an official, English-
language translation of the Registry Act, CTIA filed in the
district court a translation of the Act on which both parties rely.
Appellants do not dispute the accuracy of the translation, which is
attached to this opinion as an Appendix.
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the unit and an alternative telephone number,
the number of the unit, its make, model, and
serial number.
Id. § 5. This information must be provided to the Board within
thirty days of purchase, and the penalty for failing to do so is a
fine of up to $25,000 for each violation. Id. § 8.
B. Procedural history
Plaintiff-Appellee CTIA - The Wireless Association
("CTIA") is a non-profit corporation that represents the interests
of the wireless communications industry. CTIA's members include
Sprint, AT & T, T-Mobile, and others who sell prepaid cell phones
in Puerto Rico. On February 15, 2012, CTIA sued the Board, three
of the Board's members in their official capacities, and Governor
Fortuño in his official capacity (collectively, the "Appellants").
CTIA sought declaratory and injunctive relief, arguing that the
Registry Act was preempted by the SCA because the SCA prohibits
CTIA's members from turning over to the government -- without a
subpoena -- the same information that the Registry Act requires
them to provide.
Appellants moved to dismiss the complaint, and the
district court denied the motion to dismiss on August 2, 2012,
adopting the magistrate judge's recommendation and finding that the
two laws clearly conflict. The district court determined that the
plain language of the SCA prohibits the disclosure of cell-phone
customer information in the manner that the Registry Act requires.
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The district court then referred back to the magistrate judge the
question whether the court should permanently enjoin the
enforcement of the Registry Act. On October 18, 2012, the district
court adopted the magistrate judge's findings and recommendations
and granted CTIA's motion for a permanent injunction. This timely
appeal followed.
II. Discussion
On appeal, Appellants argue that the Registry Act
constitutes a valid exercise of Puerto Rico's police powers that
does not conflict with the SCA. Pointing to the structure and
purpose of the SCA, Appellants contend that the SCA protects only
customer information related to specific communications. It does
not, they argue, protect the information required by the Registry
Act, like a customer's name and address captured at the time of
purchase and untethered to any particular communications or
transactional record. Thus, Appellants conclude that the SCA and
Registry Act do not conflict, the Registry Act is not preempted,
and the judgment of the district court should be reversed.2
2
During the course of proceedings below, Appellants' Response in
Opposition to CTIA's Motion for Permanent Injunction expressly
asked the district court to analyze the Registry Act in toto and to
refrain from addressing any possibility of severing application of
the Act to non-CTIA members, arguing that the effectiveness of the
Act depends on its full application. This is perhaps unsurprising,
given that the challenged provisions form the functional core of
the Registry Act. See Ackerley Commc'ns of Mass., Inc. v. City of
Cambridge, 135 F.3d 210, 216 (1st Cir. 1998) (holding that
severability clause could not save unconstitutional ordinance
because the court could not conclude that the legislature viewed
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We review the district court's finding that the Registry
Act is preempted by the SCA de novo. See Weaver's Cove Energy, LLC
v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 472 (1st Cir.
2009); SPGGC, LLC v. Ayotte, 488 F.3d 525, 530 (1st Cir. 2007).
Under the Supremacy Clause of the Constitution, "the Laws
of the United States . . . shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in
the . . . Laws of any State to the Contrary notwithstanding." U.S.
Const. art. VI, cl. 2. "By virtue of this commandment, state law
that conflicts with federal law is a nullity." Mass. Ass'n of
Health Maint. Orgs. v. Ruthardt, 194 F.3d 176, 178 (1st Cir. 1999).
Nullification of state law is no small matter, and thus we "start
with the assumption that the historic police powers of the States
are not to be superseded by . . . Federal Act unless that is the
clear and manifest purpose of Congress." Grant's Dairy - Maine,
LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d
the offending provisions "as anything but a unitary part" of the
ordinance); see also Reno v. ACLU, 521 U.S. 844, 884-85 (1997)
("This Court will not rewrite a law to conform it to constitutional
requirements." (internal quotation marks and citation omitted)).
Appellants seemingly maintain this position on appeal, as they do
not challenge the scope of the injunction -- which enjoins
enforcement of the Registry Act in toto -- or argue that severance
of the disputed provisions is a possibility. Thus, even if
Appellants had not explicitly waived the issue below, their failure
to raise it on appeal would have waived any potential claim
regarding severability or the scope of the injunction. Cf. United
Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 338 (1st Cir.
2003) (limiting remand on issue of injunction's scope to only those
claims briefed and argued on appeal).
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8, 14-15 (1st Cir. 2000) (internal quotation marks and citation
omitted).3
While there are a number of ways in which Congress could
preempt state law, see SPGGC, 488 F.3d at 530-31 (describing
express preemption, field preemption, conflict preemption, and
complete preemption), relevant here is CTIA's claim of conflict
preemption. Conflict preemption occurs when federal law is in
"irreconcilable conflict" with state law, Barnett Bank of Marion
Cnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996), as "when compliance
with both state and federal law is impossible, or when the state
law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress." Weaver's Cove
Energy, LLC, 589 F.3d at 472-73 (internal quotation marks and
citation omitted).
CTIA argues, and the district court found, that the
Registry Act and the SCA directly and irreconcilably conflict
because the SCA prohibits wireless service providers from providing
customer information to the government without a subpoena, while
the Registry Act requires the same. Appellants, on the other hand,
3
Although the Commonwealth of Puerto Rico is a territory of the
United States rather than a state, the test for preemption is the
same. P.R. Dep't of Consumer Affairs v. Isla Petroleum Corp., 485
U.S. 495, 499 (1998) ("[T]he test for federal pre-emption of the
law of Puerto Rico at issue here is the same as the test under the
Supremacy Clause . . . for pre-emption of the law of a State.");
Antilles Cement Corp. v. Fortuño, 670 F.3d 310, 323 (1st Cir. 2012)
("For preemption purposes, the laws of Puerto Rico are the
functional equivalent of state laws.").
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argue that the district court's reading of the SCA was overbroad,
and that the SCA and the Registry Act do not regulate the same
information. Before we proceed to analyze Appellants' claims on
the merits, we begin with bit of background on the SCA.
A. The SCA
The SCA is part of the Electronic Communications Privacy
Act (the "ECPA"), which was enacted in 1986 "to update and clarify
Federal privacy protections and standards in light of dramatic
changes in new computer and telecommunications technologies."
S. Rep. No. 99-541, at 1-2 (1986). Title II of the ECPA is the
SCA, which imposes several restrictions on the ability of
communication service providers to divulge customer information to
governmental entities.
In pertinent part, the SCA states that "a provider of
. . . electronic communication service to the public shall not
knowingly divulge a record or other information pertaining to a
subscriber to or customer of such service . . . to any governmental
entity," unless an enumerated exception applies.4 18 U.S.C.
4
Exceptions to this prohibition include disclosures of customer
records that are: (1) authorized by 18 U.S.C. § 2703, (2) consented
to by the customer or subscriber, (3) "necessarily incident" to
render service or to protect the service provider's rights or
property, (4) provided to a governmental entity in emergency
circumstances "involving danger of death or serious physical
injury," (5) released to the National Center for Missing and
Exploited Children following the submission of a § 2258A report, or
(6) given "to any person other than a governmental entity." 18
U.S.C. § 2702(c).
-8-
§ 2702(a)(3). In its original form, the SCA dictated that "[a]
provider of electronic communication service . . . shall disclose
a record or other information pertaining to a subscriber to or
customer of such service (not including the contents of
communications . . .) to a governmental entity only when the
governmental entity [uses a subpoena or obtains a warrant, court
order, or subscriber consent]." ECPA, Pub. L. No. 99-508, § 201,
100 Stat. 1848, 1862 (1986) (codified as amended at 18 U.S.C.
§ 2703(c)(1)).
In 1994, the SCA was amended in part so that different
types of records and subscriber information would receive different
levels of protection from disclosure. See Communications
Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat.
4279 (1994). While the initial version of the Act had allowed law
enforcement to obtain subscriber information and records with a
mere subpoena, after the 1994 amendment, a subpoena is sufficient
to obtain only a limited subset of records and information, like a
customer's name, address, phone number, length of service, billing
information, and call records.5 See 18 U.S.C. § 2703(c)(2). To
5
"[W]hen the governmental entity uses an administrative subpoena
authorized by a Federal or State statute or a Federal or State
grand jury or trial subpoena," a service provider shall disclose
its customer's: "(A) name; (B) address; (C) local and long distance
telephone connection records, or records of session times and
durations; (D) length of service (including start date) and types
of service utilized; (E) telephone or instrument number or other
subscriber number or identity . . . ; and (F) means and source of
payment . . . ." 18 U.S.C. § 2703(c)(2).
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obtain additional records or subscriber information, the government
must obtain a court order, customer consent, or a warrant. Id.
§ 2703(c)(1).
B. Preemption
Appellants begin by arguing that the Registry Act is
designed to combat criminal extortion and thus constitutes a
legitimate exercise of Puerto Rico's police power. Accordingly,
Appellants contend, we should assume that the Registry Act is not
superseded by federal law unless preemption was "'the clear and
manifest purpose of Congress.'" Grant's Dairy, 232 F.3d at 14-15
(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
(1947)). Appellants argue that no such purpose is manifested by
the SCA, because the SCA regulates only transactional records and
information related to communications, not basic subscriber
information untethered to specific communications.
To support this claim, Appellants largely bypass the text
of the relevant statutory provisions and instead emphasize the
structure and titles of the ECPA. Appellants first point to the
title of subsection 2703(c), "[r]ecords concerning electronic
communication service or remote computing service." Appellants
conclude that the phrase "[r]ecords concerning electronic
communication service" refers only to communication-specific
documents like call records. As proof, they cite the title of the
SCA, "Stored Wire and Electronic Communications and Transactional
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Records Access." From this title, Appellants conclude that
subsequent references to "records" in the Act should be read to
refer only to "transactional records." According to Appellants,
the structure and titles used in the ECPA prove that the SCA only
protects wireless communications and transactional records
associated with those communications, not a prepaid phone
purchaser's name, address, and phone number. They claim that the
district court erred by relying exclusively on the language of
§ 2703 to find conflict preemption when it ought to have considered
statutory design and legislative history.
Appellants are correct that "the title of a statute and
the heading of a section are tools available for the resolution of
a doubt about the meaning of a statute." Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998) (internal quotation marks
and citation omitted). As we have previously made clear, however,
turning to titles and section headings to divine the meaning of a
statute is a "practice [that] should not be indulged at the expense
of the text itself." Mass. Ass'n of Health Maint. Orgs. v.
Ruthardt, 194 F.3d 176, 180 (1st Cir. 1999); United States v.
Ozuna-Cabrera, 663 F.3d 496, 500 n.3 (1st Cir. 2011) ("[W]e do not
rely on the titles of statutory enactments in plumbing their
meaning . . . at the expense of the text itself." (internal
quotation marks and citation omitted)).
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Here, the text of the SCA is abundantly clear:
communications service providers may not release "a record or other
information pertaining to a subscriber to or a customer of such
service . . . to any governmental entity" without the requisite
process. 18 U.S.C. § 2702 (emphasis added). If there was any
question as to whether Congress intended "record or other
information" to extend beyond transactional records to include
basic subscriber information like a customer's name, address, and
telephone number, § 2703 readily answers the question in the
affirmative:
A governmental entity may require a provider
of electronic communication service . . . to
disclose a record or other information
pertaining to a subscriber to or customer of
such service (not including the contents of
communications) only when the governmental
entity . . . [seeking a customer's name,
telephone number, etc.] uses an administrative
subpoena authorized by a Federal or State
statute or a Federal of State grand jury or
trial subpoena . . . .
Id. § 2703(c) (emphasis added). By its express language, the SCA
does not limit its protections to transactional records like call
logs. "[T]elephone connection records" are but one of six
specifically enumerated types of protected information; a wireless
service customer's name, address, length of service, telephone or
instrument number, and means of payment are also explicitly
protected by statute and cannot be released to a governmental
entity without a subpoena. Id. § 2703(c)(2).
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Where the text of a statute is clear, as it is here, we
need not go on to consider the act's legislative history to divine
Congress's intent. Antilles Cement Corp., 670 F.3d at 320 ("We
must evaluate the statute's language within the statutory scheme
and look to the legislative history and policy only if that
language is unclear." (emphasis added)). Nevertheless, in an
abundance of caution, we will proceed to consider briefly
Appellants' argument that our interpretation of the statute is
contrary to congressional purpose as evidenced by the SCA's
legislative history. See Ruthardt, 194 F.3d at 184 ("Although
textual analysis resolves the statutory construction issue, we
sometimes have looked to legislative history to confirm textual
intuitions.").
Appellants believe that the ECPA's legislative history
confirms that the SCA was intended to regulate only communications
and transactional records relating to those communications. They
first quote an excerpt of a 1986 House Judiciary Committee Report
on the bill that later became the ECPA. The report summarizes the
purposes of the Act, in relevant part, as amending the United
States Code "to provide procedures for interception of electronic
communications by federal law enforcement officers" and "to provide
procedures for access to communications records by federal law
enforcement officers." H.R. Rep. No. 99-647, at 16 (1986).
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Appellant's quotation does little to advance the ball.
The ECPA certainly did, among other things, "provide procedures for
access to communications records by federal law enforcement
officers," but that broad summary of a lengthy bill does not
suggest an intent contrary to the plain language of § 2703. In
fact, the legislative history of the SCA corroborates the
congressional purpose made manifest by the statutory text. When
Congress amended the SCA in 1994, it did so -- in part -- by
differentiating between types of subscriber information that had
previously been treated identically under the Act. See
Communications Assistance for Law Enforcement Act, Pub. L. No. 103-
414, 108 Stat. 4279 (1994). As the 1994 House Judiciary Committee
Report explained, the amendment was "raising the standard for
access to transactional data . . . to guard against 'fishing
expeditions' by law enforcement," but "[l]aw enforcement could
still use a subpoena to obtain the name, address, telephone toll
billing records, and length of service of a subscriber to or
customer of such service and the types of services the subscriber
or customer utilized." H.R. Rep. No. 103-827, at 31-32 (1994). In
other words, Congress expressly recognized the difference between
transactional data and basic subscriber information in the SCA,
affording the latter less protection, but nevertheless requiring a
subpoena prior to its disclosure to law enforcement.
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Appellants next point out that the Senate Judiciary
Committee Report corresponding to the ECPA stated that the
definition of "contents" would not include "the identity of the
parties or the existence of the communication . . . or
transactional records about it." S. Rep. No. 99-541, at 13. This
definition, Appellants contend, shows that Congress actually meant
"a transactional record" when it wrote "a record" in the SCA. We
disagree. As an initial matter, the fact that Congress knew how to
identify a "transactional record" but opted to use broader language
in § 2703 "only underscores our duty to refrain from reading a
phrase into the statute when Congress has left it out." Keene
Corp. v. United States, 508 U.S. 200, 208 (1993). More to the
point, the very same Senate Report specifically states that
§ 2703(c) "permits the provider of the service to divulge, in the
normal course of business, such information as customer lists and
payments to anyone except a Government agency." S. Rep. No. 99-
541, at 38 (emphasis added). That Congress intended § 2703 to
restrict the ability of a service provider to turn over even a list
of customers to a governmental entity is thus abundantly clear.
Leaving no stone unturned, Appellants next refer us to
statements by individual legislators who cosponsored versions of
what became the SCA in 1986. Appellants believe that these
statements show that the sponsors of the SCA never intended to
protect basic subscriber information divorced from particular
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communications. That effort is doomed from the start. "[T]he
overarching rule is that statements by individual legislators
should not be given controlling effect; rather, such statements are
to be respected only to the extent that they are consistent with
the statutory language." Rhode Island v. Narragansett Indian
Tribe, 19 F.3d 685, 699 (1st Cir. 1994) (internal quotation marks
and citation omitted). This is no less true when the statements
come from a bill's sponsors. Id.
Even if we were inclined to give weight to such
statements, in this case, they offer us no reason to believe that
Congress intended the SCA to function in a manner contrary to its
express terms. Appellants point out that a cosponsor of the bill
stated during House deliberations that "the legislation establishes
clear rules for Government access to new forms of electronic
communications as well as . . . transactional records regarding
such communications." 132 Cong. Rec. H4039-01 (1986) (statement of
Rep. Carlos J. Moorhead), 1986 WL 776505, at *26. Once more,
Appellants are endeavoring to transform a general summary of a
detailed Act into a limitation on its express terms, and the
statement referenced simply does not support such a reading. Were
we to accept Appellants' view of the import of Representative
Moorehead's statement -- and we do not -- it would still do
Appellants no favors, because "[i]n the game of statutory
interpretation, statutory language is the ultimate trump card, and
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the remarks of sponsors of legislation are authoritative only to
the extent that they are compatible with the [statute's] plain
language." United States v. Czubinski, 106 F.3d 1069, 1078 (1st
Cir. 1997) (internal quotation marks and citations omitted).
With the formidable combination of clear statutory text
and legislative history stacked against them, Appellants make one
final effort to save the Registry Act, by pointing to the existence
of telephone books. The names, numbers, and addresses of landline
telephone owners, Appellants point out, are routinely published in
telephone books that are publicly distributed. In fact, providers
of telecommunications services are required to provide subscriber
list information to "any person upon request for the purpose of
publishing directories in any format." 47 U.S.C. § 222(e).
Surely, Appellants reason, Congress, in passing the SCA, did not
intend to undermine the long-standing tradition of lawful
disclosure of basic subscriber information in telephone books.
This argument fails for two reasons. First, the Federal
Communications Commission has exempted wireless service providers
from § 222(e)'s disclosure requirements. In re Implementation of
the Telecommunications Act of 1996: Telecommunications Carriers'
Use of Customer Proprietary Network Information and Other Customer
Information, 14 FCC Rcd. 15550, 15569 (1999) ("A [mobile service]
provider . . . need not provide subscriber list information
regarding its telephone exchange customers to requesting directory
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publishers, except to the extent the . . . provider . . . publishes
that information, causes it to be published, or accepts it for
publication in any directory format."). Second, and more
critically, the provisions of the SCA at issue in this case
prohibit wireless service providers from disclosing "a record or
other information pertaining to a subscriber . . . to any
governmental entity," 18 U.S.C. § 2702 (emphasis added), without
the requisite process, id. § 2703. Section 2702 states that a
service provider "may divulge a record or other information
pertaining to a subscriber . . . to any person other than a
governmental entity." Id. § 2702(c). Accordingly, while the SCA
prohibits the disclosure of customer lists to government entities
absent the requisite process, it seemingly allows for the
disclosure of the same information to other non-governmental
entities like private publishers. Whether such disclosure is in
fact authorized by the SCA is a question we need not answer today,
however, as the case before us concerns only the compelled
disclosure of customer information to a governmental entity.
We need go no further. In sum, we find that the SCA
clearly prohibits communications providers from disclosing to the
government basic subscriber information -- including a customer's
name, address, and telephone number -- without a subpoena. Because
the Registry Act requires communications providers who sell prepaid
phones in Puerto Rico to disclose their prepaid customers' names,
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addresses, and phone numbers to a governmental entity without a
subpoena -- or any process whatsoever -- the two acts directly
conflict. The Registry Act is thus preempted by the SCA, and the
district court's order enjoining the enforcement of the Registry
Act is affirmed.
III. Conclusion
We are not unsympathetic to the Puerto Rico government's
desire to combat the exploitation of prepaid phones for criminal
purposes. No matter how worthy the objective, however, any such
effort cannot run afoul of the clear language of federal law, which
plainly forbids the disclosure of subscriber information to a
governmental entity without a subpoena.
The judgment of the district court is thus affirmed.
AFFIRMED.
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APPENDIX
AN ACT
To create a register of pre-paid telephone numbers, assigned to the
Telecommunications Regulatory Board of Puerto Rico, to empower the
Board to establish the relevant regulations and determine
penalties, and for related purposes.
EXPLANATORY STATEMENT
The use of pre-paid mobile telephone units has emerged in
Puerto Rico as the way to extort money from certain individuals. It
is increasingly common for the media to point out that various
individuals, using pre-paid cellular telephones extort people by
deception, telling them they are going to kidnap or kill a family
member, unless they provide a certain amount of money. It has come
to light that many of these calls are made from the penal
institutions of the country, using cellular telephones that have
been smuggled into the prisons.
The problem is that the owners of these mobile units,
because they are pre-paid, are not registered by the various
companies, making it impossible for the authorities to track down
their owners, if an incident of extortion occurs.
Indeed, many customers purchase this type of unit to
avoid being tied to the contracts imposed by the cellular telephone
companies or because they simply can specify the services they
really need.
However, because of the widespread use of this type of
device to commit crimes, it is imperative to provide the
Telecommunications Regulatory Board of Puerto Rico with the power
to create a register of pre-paid mobile units as a method of
protection and security for all residents of this Island.
The Telecommunications Regulatory Board, an agency
created by Act No. 213 of 1996, as amended, known as the "Puerto
Rico Telecommunications Act of 1996," [Ley de Telecomunicaciones de
Puerto Rico de 1996] is the government agency charged with
regulating telecommunications services in Puerto Rico.
Recognizing that the provision of telecommunications
service is intended to promote the public interest, within a
competitive market, and that the Board has the power to regulate
service providers in a manner consistent with their market position
and the influence they have over consumers, this Legislature deems
it appropriate to place the responsibility for this Act in the
hands of the Telecommunications Regulatory Board.
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ENACTED BY THE LEGISLATURE OF PUERTO RICO:
Section 1. Creation
A register of pre-paid telephone numbers assigned to the
Telecommunications Board is hereby created.
Section 2. Definitions
For purposes of this Act, the following terms shall have
the meanings stated below:
(a) Board – The Telecommunications Regulatory Board of
Puerto Rico, the agency charged with regulating
telecommunications services in Puerto Rico, pursuant to
the provisions of Act No. 213 of 1996, as amended, known
as the "Puerto Rico Telecommunications Act of 1996."
(b) Telephone company – any natural or legal person that
owns, controls, administers, operates, manages, supplies,
or resells, in whole or part, directly or indirectly, any
telephone service in Puerto Rico.
(c) Commercial Entities – any natural or legal person or
business establishment, such as pharmacies, gas stations,
department stores and supermarkets that sell pre-paid
wireless telephones.
(d) Owner – the natural or legal person or company that
owns or controls a prepaid mobile telephone unit.
(e) Pre-paid mobile telephone unit – any telephone or
other equipment used to make telephone or computer
communication via the cellular communications networks
that has been assigned a telephone number to be activated
through a telephone service provider; it includes
interchangeable Subscriber Identification Modules (SIM,
for its acronym in English) that serve to activate and
connect the computer to a network, when they are assigned
a telephone number, whether acquired jointly or
separately from other equipment.
Section 3. Authorization and Powers of the Board
For purposes of the registration of pre-paid mobile
telephone numbers to be created in accordance with Article II-6 of
Act No. 213 of 1996, as amended, the Board shall have original
jurisdiction over all telecommunications services and all persons
providing these services within the Commonwealth of Puerto Rico and
over any person with a direct or indirect interest in such services
or companies. This shall include any business entity that sells
pre-paid mobile telephones.
The Board is authorized and empowered to implement this
Act and ensure full and strict compliance therewith.
The registration information to be created shall only be
available to law enforcement agencies that request it, if they are
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carrying out an investigation into the commission of a crime. The
Board shall submit the information at no cost and upon submission
of a police complaint or an order issued by a court with
jurisdiction in Puerto Rico.
Section 4. Obligation to Regulate
Members of the Board shall enact, within a period of
ninety (90) days after the passage of this Act, the regulations
that are necessary to establish, among other things, all rules and
standards relating to the effective enforcement of this Act. These
Rules and Regulations shall be adopted in accordance with Act No.
170 of August 12, 1988, as amended, known as the "Uniform
Administrative Procedure Act of the Commonwealth of Puerto Rico,"
[Ley de Procedimiento Administrativo Uniforme del Estado Libre
Asociado de Puerto Rico] and, immediately after approval, shall be
housed in the Department of State of Puerto Rico.
Section 5. Register of numbers of pre-paid mobile telephones;
obligation to register the numbers falls on the Board
The Board is responsible for keeping and maintaining an
up-to-date register of all telephone numbers of pre-paid mobile
units sold in Puerto Rico, as provided for in this Act. The
register to be kept in this agency shall include the name and the
physical and postal address of the owner of the unit and an
alternative telephone number, the number of the unit, its make,
model, and serial number.
Every telephone company, natural or legal person, or
business entity that sells a pre-paid mobile telephone unit shall
require photo identification at the time of purchase and shall
register with the Board the name and physical and postal address of
the owner of the unit and an alternative telephone number, the
number of the unit, its make, model, and serial number.
Registration will take place within thirty (30) days of the
acquisition of the unit. The procedures included in the regulations
it adopts, as set forth in this Act.
Any telephone company that has sold pre-paid mobile
telephone units prior to the effective period of this Act shall be
required to submit to the Board a list of telephone numbers of
these units, and any other information it has that is required for
purposes of the register established under this Act, or which it
may have acquired in the course of its business, within thirty (30)
days following the date of entry into force hereof.
In the case of those persons, who upon approval of this
Act, have in their possession a pre-paid mobile unit, a term not to
exceed sixty (60) days is established to register the same with the
Board. The Board is empowered to extend this period for up to sixty
(60) additional days if it so deems fit.
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Section 6. Duty to notify in case of change of address
It shall be the duty of every owner of a pre-paid mobile
telephone unit to notify the Board of any change of address that
takes place within thirty (30) days following same.
Section 7. Duty of notification in the case of a new owner
It shall be the duty of every natural or legal person to
give notice to the Board if a prepaid mobile telephone unit,
previously registered by a previous owner, has been acquired either
through purchase or gift from another natural or legal person,
within thirty (30) days following the acquisition.
Section 8. Penalties
Any telephone company, natural or legal person, or
business entity that commits a violation of the provisions of this
Act, shall commit an administrative offense, punishable by a fine
of up to twenty-five thousand (25,000) dollars for each violation.
Article 9. Special Fund
The monies that are collected by way of administrative
fines imposed under this Act or the regulations thereunder shall be
paid into a Telecommunications Regulatory Board Special Fund,
without being subject to the public policy contained in Act No. 230
of July 23, 1974, as amended, known as the "Puerto Rico Government
Accounting Act" [Ley de Contabilidad del Gobierno de Puerto Rico].
The money paid into the Fund shall be transferred to the
Board to be used to cover part of its operating, fiscal and
administrative expenses in the implementation of this Act.
Article l0. Saving Clause
If any section, subsection, paragraph, subparagraph,
clause, phrase or part of this Act is declared invalid or
unconstitutional by a court of competent jurisdiction, the ruling
to that effect shall not affect, impair or invalidate the remainder
of this Act, its effects being limited only to the section,
subsection, paragraph, subparagraph, clause, phrase or part of this
Act so declared invalid or unconstitutional.
Article 11. Date of entry into force
This Act shall enter into force ninety (90) days after it
has been passed.
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