Public Comments Sought on BART Cell-Phone Shutdown

Published March 29, 2012

The Federal Communications Commission is seeking public comment on when it is appropriate for a local government to shut down mobile networks without notice, after San Francisco officials interrupted wireless services last August.

The FCC promised a probe in December after San Francisco’s Bay Area Rapid Transit system blocked cellular service for commuters in anticipation of a rumored riot. BART claimed protestors would coordinate a riot through the use of cell phones as was done in the London riots last spring. The San Francisco protests were in response to the fatal shooting of a BART passenger by the transit system’s police in July 2011.

“The FCC does have general authority to preempt state and local government with regard to mixed jurisdiction interstate/intrastate communications and its authority over wireless communication,” said Rebecca Jeschke, spokesperson for the Electronic Frontier Foundation (EFF), a nonprofit advocacy group headquartered in San Francisco. “Additionally, these are questions and situations that are going to pop up more and more often, so it makes sense for the FCC to try to resolve it.”

First Amendment vs. Safety Concerns
When considering the legalities of local law enforcement interrupting cell phone service, the FCC points to concerns raised by law enforcement personnel that wireless networks can be used to incite dangerous activities, such as trigging the detonation of explosive devices and coordinating violent flash mobs.

“Any intentional interruption of wireless service, no matter how brief or localized, raises significant concerns and implicates substantial legal and policy questions,” states the FCC’s public notice. “The service interruption last summer drew sharp criticism, state and local governments have recently grappled with how to address possible future events.”

Opponents of BART’s action raise concerns interrupting cell phone service would hinder commuters from making necessary emergency calls, a claim supported by FCC statistics indicating 70 percent of all 911 calls are made from cell phones. Opponents also argue BART violated commuters’ First Amendment rights.

“Do we really want an environment where any telecom provider can shut down any service without warning if they don’t like what might be said through that service?” asked Jeschke. “That’s why there are FCC regulations in this area—to protect speech and safety.”

Obtaining Court Permission
The EFF and eight other groups have petitioned the FCC to ensure local governments do not shut down cell phone services without first going to a court to obtain permission. The EFF argues local law enforcement agencies have no authority to interrupt phone service on the mere suspicion of illegal activity without due process.

“Our biggest priority is that mobile networks aren’t shut down to block protests or any other First Amendment protected activity,” said Jeschke. “We’ve asked for a court hearing before any shutdown, with any exceptions being extremely narrowly tailored and also subject to review.”

The agency is accepting public comments until April 30 and will issue a reply by May 30.

Alyssa Carducci ([email protected]) writes from Tampa, Florida.