

David M. BARASCH, Consumer Advocate, et al., Appellees,
 v. 
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellant. 

David M. BARASCH, CONSUMER ADVOCATE, et al., Appellees.

 PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellant.


                       Nos. 201 E.D.1990, 202 E.D.1990.
                         Supreme Court of Pennsylvania.
                               March 18, 1992.
                         OPINION OF THE COURT

PAPADAKOS

   In this appeal we are called upon to address the legality of "Caller
ID" service which Appellant, The Bell Telephone Company of Pennsylvania
(Bell), proposes to offer to its customers.  For the reasons set forth
below, we agree with the Commonwealth Court that "Caller ID" violates
our Wiretapping and Electronic Surveillance Control Act, 18 P.S. ss
5701-5781, and hence cannot now be offered in Pennsylvania.  The facts
on which this appeal is based are as follows.
   On January 18, 1989, Bell filed a revision to Tariff Pa. PUC No. 1,
proposing that Various new services be added to its tariff, including
the offering of the optional service known as Caller ID.  Caller-ID
allows a telephone subscriber to identify and record the telephone
number from which a call is being made, including private and unlisted
numbers, through the use of a device supplied to customers which
displays that number and then stores it for future retrieval. {FN1}
   With Caller ID service, every time a call is made from a private
telephone, the caller's telephone number will be obtained by the Caller
ID subscriber and by anyone to whom that subscriber chooses to give or
sell that number.  This is true regardless of whether the caller wishes
to divulge the number to the call recipient. Complaints against the
Caller ID portion of the proposed tariff were filed by a number of
parties, including the Office of Consumer Advocate (OCA);  the Office
of the Attorney General;  Barry Steinhardt and the American Civil
Liberties Union of Pennsylvania (ACLU);  Karen Kulp, President of the
Pennsylvania Coalition Against Rape;  and Mary Jane Isenberg, President
of the Pennsylvania Coalition Against Domestic Violence (PCADV).
   By order entered March 31, 1989, the Pennsylvania Public Utility
Commission (PUC) suspended the Caller ID portion of the tariff for
investigation purposes and the matter was assigned to an Administrative
Law Judge (ALJ) for hearings and a recommended decision.  The remaining
services offered by Bell in this proceeding were approved by the PUC
without further investigation. (FN2)
   On September 22, 1989, after extensive hearings and briefings by the
parties, the ALJ issued his recommended decision on Caller ID.  In that
decision, the ALJ agreed with the positions taken by OCA, PCADV and the
Attorney General and found that Caller ID service was not in the public
interest unless it was provided along with a free "per-call" blocking
option, with which callers could block the transmission of their
telephone numbers if they chose to do so.
   The recommended decision concluded that unblockable Caller ID
constitutes a "trap and trace device" as that term is defined in the
Pennsylvania Wiretap Act, supra.  The ALJ determined that providing the
service as proposed by Bell would be a violation of law, and thus per
se unjust and unreasonable under the Public Utility Code. Moreover, the
ALJ determined that, whether or not Caller ID service was deemed
violative of the Wiretap Act, it was not in the public interest to
offer Caller ID without a blocking option.  The ALJ found that numerous
groups and individuals who require privacy in making calls in certain
instances would be threatened by unblockable Caller ID.  The ALJ also
found that the implementation of a blocking option would not diminish
the value of Caller ID in responding to annoying calls, particularly
when the benefits of the service were considered along with other Bell
services such as Call Trace. {FN3}
   After the filing of exceptions and reply exceptions by various
parties, the PUC, at its public meeting on November 9, 1989, voted to
reject the Administrative Law Judge's recommended decision and to allow
Bell to provide Caller ID almost without restriction or protection for
callers.  The three to one decision determined that Caller ID blocking
could only be provided to non- profit domestic abuse shelters and their
staffs, law enforcement agencies, and individuals "certified" by law
enforcement officials as requiring Caller ID blocking to "mitigate the
risk of personal injury."  Caller ID blocking would not be made
generally available to any other individuals.
   On November 28, 1989, Petitions for Review of the Commission's order
were filed by the OCA and the PCADV.  On December 8, 1989, the OCA and
the PCADV filed a Joint Application for Partial Stay with the
Commonwealth Court.  The application requested that Bell be directed to
provide a free per-call blocking mechanism if it chose to offer Caller
ID to the general public or, alternatively, that Bell be permitted to
offer Caller ID service only to emergency service providers, i.e.,
police, fire and county emergency dispatch centers, during the pendency
of the appeal.  Petitions for Review and Applications for Stay were
also filed by the ACLU and by Carol Walton and the Consumer Education
and Protective Association (CEPA). By opinion and order entered
December 29, 1989, after argument, Judge Crumlish of the Commonwealth
Court granted the Application for Partial Stay and directed that Caller
ID could only be offered to emergency service providers pending the
resolution of the appeal.  The opinion and order of Judge Crumlish is
reported at 130 Pa.Cmwlth.  Ct. 418, 568 A.2d 726 (1989).
   After briefing and en banc argument on the merits, the full
Commonwealth Court held that Bell's proposed Caller ID service violates
the trap and trace provisions of the Pennsylvania Wiretap Act. The
Commonwealth Court decision is reported at --- Pa.Cmwlth.  Ct. ----,
576 A.2d 79 (1990).  A majority of the court, in an opinion by Judge
Smith, also found that the PUC's approval of Caller ID violated the
privacy rights of Pennsylvania citizens guaranteed by the Pennsylvania
Constitution.  The court also ruled that the limited blocking procedure
approved by the Commission was wholly devoid of minimum due process
protections and that the PUC decision on that point was not supported
by substantial evidence.  The Commonwealth Court majority also declared
that Caller ID service would be unlawful and unconstitutional even if
it were offered along with the per-call blocking option recommended by
the ALJ.
   In an opinion which concurred in part and dissented in part, Judge
Pellegrini, joined by Judge McGinley, fully endorsed the holding that
Caller ID violated the trap and trace provisions of the Pennsylvania
Wiretap Act. However, Judge Pellegrini stated that the court should not
have reached the constitutional questions raised in the Petition for
Review. Because the Commonwealth Court order reversed the commission
order in its entirety, three of the successful Petitioners below--OCA,
PCADV and ACLU-- filed an Application for Limited Reargument which
sought clarification of the order as to one point.  Specifically, the
applicants asked the court to clarify their order to the affect that it
did not preclude the use of Caller ID by emergency service providers.
Such emergency service providers are exempt from the relevant
prohibitions of the Wiretap Act. On July 18, 1990, the court entered an
order denying the Application for Reargument, but, in doing so,
declared that the court's majority opinion "neither impliedly nor
expressly invalidates any provision of the Pennsylvania Wiretapping and
Electronic Surveillance Control Act, 18 Pa.C.S. ss 5701-5781, allowing
the use of recording and trap-and-trace devices by police and other
designated emergency systems.
   The PUC and Bell filed Petitions for Allowance of Appeal with this
Court on August 14, 1990.  By orders dated December 19, 1990 and
December 24, 1990, we granted both petitions and briefs were
subsequently filed by the PUC, Bell and several amici curiae.  The
appeals were consolidated by order of this Court dated February 8,
1991. {FN4}
   We agree with Judge Pellegrini in that Caller ID violates the
Wiretap Act, and that it is unnecessary, therefore, to reach the
constitutional issues addressed by the Commonwealth Court majority.
   Simply put, Caller ID, as proposed by Bell and approved by the PUC,
violates the "trap and trace" prohibitions contained in the
Pennsylvania Wiretap Act. A trap and trace device is defined at 18 P.S.
s 5702 as follows: Trap and trace devise. 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.
   The relevant section of the Wiretap Act that governs the use of trap
and trace devices is 18 P.S. s 5771, which provides:  General
prohibition of pen register {FN5} and trap and trace device use;
exception (a) General rule.--Except as provided in this section, no
person may install or use a pen register or a trap and trace device
without first obtaining a court order under section 5773 (relating to
issuance of an order for a pen register or a trap and trace device).
(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: (1) relating to
the operation, maintenance and testing of a wire or electronic
communication service or to the protection of the rights or property of
the provider, or to the protection of users of the service from abuse
of service or unlawful use of service;  or (2) to record the fact that
a wire or electronic communication was initiated or completed in order
to protect the provider, another provider furnishing service toward the
completion of the wire communication or a user of the service from
fraudulent, unlawful or abusive use of service, or with the consent of
the user of the service. (c) Penalty.--Whoever, intentionally and
knowingly violates subsection (2) is guilty of a misdemeanor of the
third degree.
   By definition and by agreement of the parties, the Caller ID
terminal which is purchased by the subscriber and attached to the
subscriber's telephone line "captures the incoming electronic or other
impulses which identify the originating number" of the telephone from
which the call was transmitted.  That is the very function of the
Caller ID device.  It captures, displays, and stores for future
retrieval the telephone number of the calling party. Caller ID
therefore falls within the general prohibition of Section 5771(a) of
trap and trace devices and cannot be used by anyone without first
obtaining a court order.  The only remaining issue is whether it falls
within one of the exceptions to this general prohibition in Section
5771(b). The PUC, Bell and the Office of the Attorney General (in his
amicus brief) all argue that Caller ID is permitted under the exception
which permits 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 most obvious flaw in this argument, of
course, if that the Caller ID subscriber is not an electronic or
communicating service provider.  The exception, therefore, can only
apply to Bell, not to the subscriber.
   Bell argues vehemently that it is the only entity that performs a
trap and trace under the statute, not the subscriber.  Bell contends
that Caller ID involves only a single trap and trace by the telephone
company.  It is Bell's network computers that "capture" the caller's
number by computer software that identifies and stores the number in
memory upon placement of a call.       The call recipient merely
receives the resulting information which is transmitted by Bell from
its network computer.  The display unit is entirely passive, like a
television or radio or mailbox.  It does not send any signal to or
otherwise act on or manipulate the telephone network to ferret out the
caller's number from the mass of electronic signals in the network.
That function of "capturing" the caller's number is performed by the
telephone company, without whose deciphering of the electronic signals
in the network the called party would have no ability to identify the
number.  Appellees respond to this argument by contending there are two
traps which take place when Caller ID service is used.  The first is by
the telephone company and it occurs when the calling number is placed
in the memory of the called party's central office. This trap may be
exempted from the provisions of Section 5771(b) under certain
circumstances.  But there is a second trap--when the calling number is
deposited and stored in the customer's Caller ID device.  That trap is
not the use of "a trap and trace device by a provider of electronic or
wire communication service" and thus is not exempted.  Whatever the
merits of this argument, and the Commonwealth Court agreed with
Appellees and concluded that neither the "Caller ID device nor the data
captured by the device is controlled or maintained by Bell but rather
by the customer subscriber, clearly violating the trap and trace device
prohibition....  " 576 A.2d at 85;  nevertheless, further examination
of the governing statutory language is necessary.
   Even if the Caller ID service were solely a function of the
telephone company--which it almost certainly is not--we agree with the
Commonwealth Court that the service still violates the wiretap law,
because it is being used for unlimited purposes without the "consent"
of each of the users of the telephone service.  As noted by the
Commonwealth Court majority: Followed to its logical conclusion, Bell
would contend and have this court believe that a Caller ID subscriber
is the user of the service and consents to use of a trap and trace
device by subscribing to Caller ID.      This argument must fail when
one considers that "user" includes "any person or entity" who uses the
telephone network and that a contrary and reasonable interpretation of
that term could also be construed as the calling party rather than the
Caller ID subscriber. 576 A.2d at 85.  Judge Pellegrini joined in this
aspect of the decision and further demonstrated the consistency of this
interpretation with the Pennsylvania wiretap Act's requirement that all
parties to a warrantless wiretap must consent to its use.  18 P.S. s
5704 provides: It shall not be unlawful under this chapter for: ... (4)
A person to intercept a wire, electronic or oral communication, where
all parties to the communication have given prior consent to such
interception. As stated by Judge Pellegrini: [W]hen the 1988 amendments
were adopted by the General Assembly, they were grafted onto a
legislative scheme very different and one that is much more protective
of individual rights than federal law.  Even though the language of the
federal law and 1988 amendments to the Wiretap Act are nearly the same,
by not changing the "all party consent rule," it is clear that the
General Assembly meant that any part of the communication, including
phone number identification, should have the consent of all parties
prior to it being trapped and traced. 576 A.2d at 93.
   We agree.  None of the parties relying upon the exception in Section
5771(b) provides a satisfactory explanation of why the "user" as it
appears in Section 5771(b)(2) must refer only to the Caller ID
customer, rather than the calling party, or both the called and calling
parties.  No one disputes that the definition of "user" in the Wiretap
Act includes "any person or entity" who uses the telephone network.  18
P.S. s 5702.  It is also obvious that when a Caller ID device is
employed, two "users" of the telephone network are involved--the called
party and the calling party.  It is the caller whose number is being
trapped and traced and whose privacy is being jeopardized, and whose
"consent" would therefore be particularly relevant.  Moreover, under
the rules of statutory construction, the singular generally includes
the plural. 1 P.S. s 1902. In short, as recognized by the Commonwealth
Court, the "consent" provision of the trap and trace section must be
read in light of the overall requirement of the Act that consent to any
form of interception must be obtained from all parties.  18 P.S. s
5704(4).  The two-party consent rule has long been established in
Pennsylvania as a means of protecting privacy rights and principles of
statutory construction require that the provisions of the Wiretap Act
be interpreted in a manner which is consistent with those concerns.
   Where the consent of less than all parties is required under the
Wiretap Act, the General Assembly specifically so stated, as in Section
5704(2)(ii) which permits a law enforcement officer, under very limited
circumstances, to intercept a communication where "one of the parties
to the communication has given prior consent to such interception."
(Emphasis added.)  If the General Assembly had concluded that the
consent to a trap and trace by "one of the users" of the service was
sufficient, then they could have so stated.  But they did not.  In
short, Caller ID violates the Pennsylvania Wiretap Act and therefore
the Commonwealth Court decision must be affirmed.
   We need not reach the constitutional issues decided by the
Commonwealth court majority in this case because we have long held that
our courts should not decide constitutional issues in cases which can
properly be decided on non- constitutional grounds.  Ballou v. State
Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981).  Nor do we decide
what results should be reached if Bell provided with its Caller ID
service a free "per call" blocking option for callers.  That issue is
not before us. Accordingly, the decision of the Commonwealth Court is
affirmed.


FN1. Caller ID would not permit customers to identify the telephone
number of calls being made from a pay telephone, by credit card, or
through operator assistance.

FN2. Among the other Bell services approved in this proceeding and
currently available to customers is a service known as Call Trace.
With this service, a person who receives an abusive or objectionable
phone call can dial a three-digit code and thereby have the call traced
by the telephone company.  The company can then take appropriate action
as to that caller.  Unlike Caller ID, Call Trace does not reveal the
caller's number directly to the called party. Other Bell services
approved in this case include:  Call-Return which allows a customer, by
dialing a three-digit code, automatically to return the last call
received, without knowing the phone number of the caller; and
Call-Block which allows a customer to block the receipt of calls
permanently from up to six different phone numbers, including the phone
that made the last call which was received, whether or not the customer
knows the number of the last caller.

FN3. It should be noted that the operation of Call Trace would not be
affected by the blocking mechanism recommended by the ALJ. The same is
true for Call-Return and Call-Block services discussed in footnote 2,
supra.

FN4. Pursuant to Rule 502(c) of the Pennsylvania Rules of Appellate
Procedure, and by order of this Court dated February 8, 1991, the name
of Irwin A. Popowsky, Consumer Advocate, was substituted for that of
David M. Barasch as an Appellee in this matter.

FN5. A "pen register" is defined as:  A device which records or decodes
electronic or other impulses which identify the numbers dialed or
otherwise transmitted, with respect to wire communications, on the
telephone line to which the device is attached.  The term does not
include a device used by a provider or customer of a wire or electronic
communication service for billing, or recording as an incident to
billing, for communication service provided by the provider, or any
device used by a provider, or customer of a wire communication service
for cost accounting or other like purposes in the ordinary course of
business.  18 P.S. s 5702.


MR. JUSTICE MCDERMOTT files a Concurring Opinion. CONCURRING OPINION

MR. JUSTICE MCDERMOTT

I agree that the statute is clear upon its face and applies to "any
person or entity." {FN1} Therefore the constitutional questions need
not be addressed at this time.

FN1. 18 Pa.C.S. s 5702.
