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

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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