Have any of you run into cellular carriers wanting to charge for records that are sought via an administrative subpoena? I had an query from an Texas Ranger who said that several of the small companies want to charge for what they are required to produce, and now he has hear rumors that two of the big cellular carriers plan to start charging as well.

I looked in the CCP and found Art. 39.04, but this chapter seems to principally apply to pre-trial discovery. Has this come up for your investigators or PDs and SOs?

Janette A

Article 18.21 has a payment provision in Section 9, but by its terms it only applies to requests under 18.21. Otherwise, we usually whip out AG Opinion JC-0181 which says we don't have to pay for subpoenaed evidence. I am aware of some carriers citing Ameritech Corp. v. McCann, 403 F.3d 908 (7th Cir. 2005)for the proposition that a federal statute requires payment for this type of thing. Seems to me there are some arguments against that holding that are not addressed in the opinion.

The Lizard Man is innocent!

As always, John, I can count on my old classmate for an answer!

Janette A

I did some research on this issue in March. There is a distinction between prepaid carriers and traditional carriers. If the request for records is to a tranditional carrier, such as Sprint, then they are not entitled to reimbursement -- they keep call records as matter of course to calculate bills. Prepaid carriers do not keep these records because the bill is a flat fee regardless of calls in and out; thus, they are entitled to reimbursement for the amount that they have to pay to get the information from the third party that stores the information for them.

That case I cited was courtesy of ASMurphy, by the way, Janette. Maybe the key on prepaid stuff is to subpoena directly the third party that has the data? I have grave concerns, however, where Congress purports to use its commerce power to regulate the use of the several states' police power within the state. Something doesn't seem right there.

The Lizard Man is innocent!

[This message was edited by JohnR on 07-09-08 at .]