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Public Knowledge Urges FCC to Prevent Future BART-like Shutdowns
by Public Knowledge
Tuesday Aug 30th, 2011 1:11 AM
By Sherwin Siy on August 29, 2011 - 2:20pm

Today, Public Knowledge, joined by a wide variety of consumer, civil rights, and civil liberties groups, urged the FCC to immediately pass rules that would prevent local authorities from ordering a shutdown of wireless services the way that BART did earlier this month. As Harold’s earlier blog post points out, we don’t even need to get to the (extremely pressing and important) First Amendment issues to find that BART’s actions violated the law—the Communications Act, to be precise.

This petition isn’t about punishing BART, though—it’s about making sure that other local authorities won’t make the same shortsighted and dangerous mistake in the future. To that end, it asks for the FCC to declare that local government shutdowns of cellular services violate the Communications Act in one or more of the following ways:

1. Common carriers of telecommunications, as well as their agents, trustees, and receivers, are prohibited by law from discontinuing, reducing, or impairing service. This applies both to landline and wireless telephone service. If BART was acting as a carrier, or an operating trustee or agent of a carrier, it violated the Communications Act.

2. Governments can’t order shutdowns of telephone service. There’s a lot of case law on local governments, ranging from state attorneys general to local police officials, calling up phone companies and trying to get them to disconnect gamblers, bookies, and other sorts of people using phones in the commission of alleged crimes. The case law, certainly in California, and in other states, too, says they can’t actually do that just based on the suspicion that a crime is being committed. When Earl Warren was the Attorney General of California, he couldn’t do it. The infamous Bull Connor of Birmingham couldn’t do it, either. Earl couldn’t, Bull couldn’t, BART can’t.

3. Even acting just as a third party with access to a power switch, BART can’t turn off cell service to others. The Communications act prohibits anyone from willfully interfering with wireless communications of licensed providers. That means mucking about with the calls of anyone on the wireless cell phone network is running afoul of the Communications Act.

The consequences of an arbitrary cutoff of cellular service can be extraordinary. In emergency situations ranging from a relatively small earthquake to a moderate storm to a devastating tsunami, individuals rely upon their mobile devices to receive alerts, call for help, and contact loved ones. Often, decentralized and user-generated communications are more efficient and robust ways of getting vital information out to others, and it helps no one to deprive the public of that capability when it’s needed most. Add to this the importance of ensuring that local governments don’t abuse their power to suppress speech, and we can see that this sort of communications shutoff is both illegal and a very bad idea.

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Bay Area transit cut off cell phone service due to fear of disruptions related to protest
By John Eggerton -- Broadcasting & Cable, 8/29/2011 4:14:54 PM

Public Knowledge has joined with a number of interest groups to ask the FCC to clarify that the Bay Area Rapid Transit (BART) shut-down of cell phone service Aug. 11 was out of bounds.

For fear of disruptions related to a public protest, BART cut off cell service to its stations. It defended the move by saying that protesters had said they were planning to use mobile devices to coordinate disruptive activities -- a 'flash mob' protest of sorts -- at BART stations during rush hour. "BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform," it said.

In a petition, the groups ask the FCC to clarify that "local government agencies may not interfere with access to mobile phone networks." They are concerned BART may repeat the action and that other agencies may take the lead from BART and try to shut down other networks, "potentially disrupting access to communications relating to public safety and protected speech."

Signatories to the petition for declaratory ruling were the Broadband Institute of California, Center for Democracy and Technology, Center for Media Justice, Electronic Frontier Foundation, Media Access Project, Minority Media and Telecommunications Council, National Hispanic Media Coalition, and New America Foundation's Open Technology Initiative.

They argue BART violated Title II of the Communications Act by deliberately interfering with Commercial Mobile Radio Service. If state or local governments want to interrupt such service, they argue, they need to petition station commissions or the FCC for guidelines and procedures, absent which such interruptions are illegal.

"While BART has no affirmative obligation to provide cell service," they told the FCC, "once licensed CMRS providers actively offer wireless service in the BART system, BART cannot lawfully interfere with the provision of that wireless service. BART simply does not have discretion to turn the service on and off as it pleases."

The FCC is looking into the complaints about BART action that followed the Aug. 11 move.