FCC Asked For Declaratory Ruling That BART Shutting Off Mobile Phone Service Was Illegal

from the but-will-they? dept

Wed, Aug 31st 2011 6:42am — Mike Masnick

We'd already noted that the FCC was investigating whether or not BART broke the law when it decided to turn off mobile phone service in an effort to stop some protests (a direct attack on a specific form of speech). Now, some public interest groups, including Public Knowledge, the EFF and the Center for Democracy & Technology, have specifically asked the FCC to state that BART broke the law and that local government agencies cannot choose to turn off mobile phone networks:

Current events around the country and the world highlight the urgency and importance of this issue. Growing concern over �flash mob� crimes has led some policymakers to attempt to target communications network for increased scrutiny. In the wake of riots in London, politicians in the United Kingdom have proposed increased governmental surveillance of, access to, and control over social media platforms and other communications media. Such interference with communications has a long history of being used to suppress civil rights protests over a wide variety of traditional and new media, from distributing flyers to television broadcasting.

This tendency, multiplied by the number of state and local agencies willing to exercise control over CMRS, could wreak complete havoc on the reliability of CMRS service by rendering it dependent on the discretion of the most-restrictive authority in any given region. Moreover, inconsistency and unreliability of service would be only two of the many resulting problems. If local government agencies claimed the authority to impede or restrict communications at their own discretion, users� rights to free speech, just and reasonable access, and emergency services would all be imperiled, subject to local determinations of the relative values of these rights as balanced against the peculiar interests of the restricting authority.

As made plain by the negative ramifications of BART�s alternative proposal, statutes exist � and have been upheld by the courts � to prevent actions like BART�s for good reason. When local and state agencies determine a need to restrict communications, they must work with local public utilities or communications agencies and the Commission pursuant to recognized processes. It is untenable legally and practically to allow the whim of any person or agency that has access to network hardware to dictate who is entitled to access communications services and when.

BART�s past shutdown of CMRS, and its apparent plans for similar shutdowns in the future, raise grave concerns. More troubling, other local agencies may use similar shutdowns of CMRS networks in the future--potentially disrupitng access to communications relating to public safety and protected speech. For the above-mentioned reasons, the Commission should issue a declaratory ruling clarifying that such shutdowns by local governments violate the Act.

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Filed Under: bart, fcc, free speech, mobile phones, protests, wireless

28 Comments

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Joe Publius (profile), 31 Aug 2011 @ 6:47am

Of course the FCC will go after BART for shutting down the mobile service. The right to silence people for "safety reasons" belongs to the central government.
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Anonymous Coward, 31 Aug 2011 @ 6:48am

The usual collection of whiners step up to the plate.

I doubt the FCC will issue a summary ruling, because they could get clubbed over the head with it in the future if they say the wrong things.

EFF et al. need to learn some patience. Pushing hard will just get the rebuked, or worse, and summary judgement that "there are circumstances where this is desirable" and vague wording otherwise.

Pushing too hard too fast won't get anyone a good answer, just a fast one.
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Anonymous Coward, 31 Aug 2011 @ 6:48am

The usual collection of whiners step up to the plate.

I doubt the FCC will issue a summary ruling, because they could get clubbed over the head with it in the future if they say the wrong things.

EFF et al. need to learn some patience. Pushing hard will just get the rebuked, or worse, and summary judgement that "there are circumstances where this is desirable" and vague wording otherwise.

Pushing too hard too fast won't get anyone a good answer, just a fast one.
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A Dan (profile), 31 Aug 2011 @ 6:52am

Confusing title
The title makes it sound like the FCC has asked for it, not is being asked for it.
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That Anonymous Coward (profile), 31 Aug 2011 @ 7:00am

Damn that Mike, hes supporting anarchists!!!
We have to be able to violate peoples rights to protect peoples rights!

Hey being a mindless troll isn't just for people with gravatars! :)
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Richard (profile), 31 Aug 2011 @ 7:08am

Re:
The usual collection of whiners step up to the plate

I like the way you introduce yourself!
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The eejit (profile), 31 Aug 2011 @ 7:30am

Re:
E-

Lack of Freetarding, no Masnicks, and you outright said you were trolling. Try this:

Masnick must love the terrorists, because BART shut it off to stop peaceful errorist freetards from doing what they want.
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Anonymous Coward, 31 Aug 2011 @ 7:40am

Re:
I get your point. If you whine too much or too often you lose credibility and you might not like the answer you get. But I don't think the issue they're pushing here is just whining. I think there are conceivably times when it's reasonable to disconnect service like this, but I'm not convinced this was one of them. I see no harm in examining the question. It seems very worthwhile to me. Kudos to the whiners.
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That Anonymous Coward (profile), 31 Aug 2011 @ 7:43am

Re: Re:
I do not troll very well...
I think that is high praise :)
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Anonymous Coward, 31 Aug 2011 @ 7:46am

It's sort of an odd occurance legally. It is illegal to jam communications (except for limited, typically military, instances by the federal government). However, it is a grey area as to whether you can just shut them off. It would seem to be a 1st ammendment violation, but I've not heard of any ruling indicating that for a fact.

Effectively, it leads to the same thing regardless of how the comms are stopped but legally it is a bit unsettled.
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Someantimalwareguy (profile), 31 Aug 2011 @ 8:22am

Re: Re:
The only legitimate action is one where certain types of comm are blocked, but not all to avoid the usual "hey did you feel that?" or other unnecessary calls during a natural disaster or emergency situation so that rescue and first responders are not hampered in their duties or response times. In other words, directly related to public safety and protecting human lives.

Other than this, there is no reason to prevent anyone from exercising their first amendment rights to free speech. Though some would try to argue otherwise, it is one of the most important cornerstones to our way of life and is at the heart of our republic. To argue otherwise is to reveal yourself as un-American period.
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Bengie, 31 Aug 2011 @ 9:11am

Re:
Last I check, turning off a communications system "for the hell of it" is a safety issue.

I would attack them from that aspect.
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Badger (profile), 31 Aug 2011 @ 9:38am

Weird...
So, in America, businesses *have* to provide mobile phone communication systems because otherwise you're denying people of their right to free speech?

Interesting place...
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Anonymous Coward, 31 Aug 2011 @ 10:23am

Re: Re:
There are plenty of ways of attacking it, and it's likely not legal.

It's just the issue an interpretation of the law issue rather than a clear cut "X action is illegal as clearly defined is Y law." There is no law saying you cannot turn off a cell network under certain circumstances or for various reasons.
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Anonymous Coward, 31 Aug 2011 @ 10:24am

ugh, why did flash mobs turn into violent acts instead of a bunch of people suddenly dancing and have a good time?
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Anonymous Coward, 31 Aug 2011 @ 10:26am

Re: Weird...
So, in America, businesses *have* to provide water to your house even if you are late on payments?

Interesting place...
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Anonymous Coward, 31 Aug 2011 @ 10:54am

Re: Confusing title
I was just going to post the same thing when I saw your comment. The title is very misleading...
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Havoc (profile), 31 Aug 2011 @ 11:24am

Re: Weird...
That's something that many people seem to misunderstand- BART furnishes- to their customers- the extender service so their customers' phones will work in the subway, where otherwise they would not normally work. To me, the right to refuse service to anyone threatening to disrupt service to paying customers, while not a popular view, is likely to be found correct.
If BART can show just cause that their intent was the protection of the many while turning off a service that they LEGALLY control, this should go away.
Cell service-or more precisely, a private cell service EXTENSION- is not a First Amendment right.
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Anonymous Coward, 31 Aug 2011 @ 11:27am

Re: Weird...
BART isn't a 'business' they're a government agency and in America the government can't just shut of mobile phone communication in an effort to stop speech based on the content of that speech because otherwise they're denying people their right to free speech.
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Anonymous Coward, 31 Aug 2011 @ 11:31am

Re: Re: Weird...
No, the 'something that many people seem to misunderstand' is that BART is not a private enterprise. They are literally an independent unit of the government. They are not afforded the same rights an privileged a private business would be afforded.

'The right to refuse service' is not without limits however that's rather immaterial given the circumstances either way.
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Anonymous Coward, 31 Aug 2011 @ 11:32am

Re:
Probably soon after the government decided that a bunch of people suddenly dancing and having a good time was a crime:

http://www.youtube.com/watch?v=PWeF6lwg4aY
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Havoc (profile), 31 Aug 2011 @ 12:10pm

Re: Re: Re: Weird...
The agency has ZERO responsibility to furnish cell service extension. Zero. What is done as a courtesy service for paying customers of the transit service can be ceased to protect the integrity of the service. BART's under no legal obligation to provide this service, there is NO First Amendment protection. It's not cell service, it's nothing more than a booster.
But I'd be curious to see a survey from paying patrons of BART, just to see what their take on this is. I doubt this is the big deal that it's tried to become, despite the unemotional actualities of law and reason.
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Sneeje (profile), 31 Aug 2011 @ 12:31pm

Re: Re: Re: Re: Weird...
The problem is that once you *do* provide a service (regardless of what it is), how you manage that service is subject to normal constitutional protections.

They can't say, "well we've decided we won't allow african americans to use our service that we don't really need to offer anyway."

That's where the problem lies. If they want to shut it off because they feel the service is more trouble than it is worth, they can do that. But if they choose to shut it off during a legal protest--that's another thing entirely.
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antiderp, 31 Aug 2011 @ 2:25pm

Money
Let's forget the free speech angle for a second, since the turfers get quite foamy over it.

Put it this way, some feeble minded bureaucrat with tales of boogeymen shut down a system that TAX PAYERS fund. So, how about if the need is so OBVIOUS and PRESSING that they put their money where their mouth is:

Sure Lord Derp of BART you may shut down the system, however you personally will repay the municipality that funds the system for the interruption in service, also since the "issue" is so OBVIOUS and PRESSING you should also have no concern regarding losing your liability indemnity for such NECESSARY actions.
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jenningsthecat (profile), 31 Aug 2011 @ 6:21pm

Re: Weird...
I'm not sure of this, but it seems to me that BART isn't a business, it's a government agency funded by taxpayers.

If BART wanted to interdict cellular communications in their transit system, they shouldn't have installed the equipment in the first place. Having done so, they have created among their patrons a reasonable expectation that cellular service will always be available, except of course for occasional equipment failures.

The fact that BART is taxpayer funded suggests that their cellular equipment constitutes municipal infrastructure, and for that reason they shouldn't be allowed to turn it off any old time they happen not to like the uses to which it's being put. Allowing them to do so would be yet another step onto the slippery slope down toward totalitarianism.
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Anonymous Coward, 1 Sep 2011 @ 6:12am

Re: Re: Re: Re: Weird...
"The agency has ZERO responsibility to furnish cell service extension. Zero. What is done as a courtesy service for paying customers of the transit service can be ceased to protect the integrity of the service."

This is a completely irrelevant straw man. No one has claimed that they have a 'responsibility' or an 'obligation' to provide cell service, only that they cannot operate that service in a way that infringes on the First Amendment rights of the users of the service because they're a government entity.

"BART's under no legal obligation to provide this service, there is NO First Amendment protection."

You're attempting to conflate the two here but they are absolutely not related at all. Saying that the users of the service have First Amendment protection is not tantamount to saying that BART has a legal obligation to provide service. They're not equivalent statements so stop trying to pretend they are.

BART is absolutely bound by the first amendment because they're part of the government. In this specific case they were targeting the content of speech that they did not like, they said so verbatim, and that's illegal. They weren't shutting down the service for maintenance or to discontinue it or to 'protect the integrity of the service.' They shut it down to chill speech. A government entity cannot shutdown an avenue of communication in an attempt to block specific content in speech, that's illegal.
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Anonymous Coward, 1 Sep 2011 @ 11:16am

Re: Weird...
BART isn't a business. It's a government agency. That's why they have a police force.
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nasch (profile), 1 Sep 2011 @ 2:52pm

Consequences
If this action is found illegal, won't that discourage BART and other governmental organizations from offering such services in the first place? Just the controversy itself may be enough to do that, even if BART is cleared.
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