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The comments that we filed today were replies to several issues raised in the first round. In particular, we were responding to arguments raised about who gets to initiate shutdowns, the constitutionality of some proposed and existing shutdown procedures, and the fact that government agencies cutting of access to the public airwaves still runs afoul of the First Amendment, even if they're cutting off access in areas that aren't traditional public forums. Finally, since a number of prison organizations and their vendors commented about their desire to interrupt wireless service in and around prisons, I figured it was worth mentioning that the demand for prisoners to have contraband cell phones would be significantly reduced if prisoners' phone calls were charged rates thateven approached something resembling sanity. I'll highlight a couple of these arguments below.
Your Friendly Local Censor
A few comments, notably the California Public Utilities Commission (California's state regulator of things like telecommunications, water, power, and rail service), argued that the FCC couldn't override state- and locally-created policies for cell phone shutdowns. In addition to this, CPUC (and a few others, like AASHTO, the American Association of State Highway and Transportation Officials) seemed to be defending BART's decision to shut down service on August 11 of last year.
For us, this deep disconnect between what local authorities think is proper (shutting down communications in advance of a possible protest) and what we (and many others) think is proper (protecting free speech by default) suggests that giving local governments the discretion to censor is a bad idea. Not just because we clearly disagree with what local governments have done, but also because different state and local governments will do different things in similar situations. And what happens when these jurisdictions overlap? To take a completely spontaneous example, imagine riding on BART. BART has its own police force and is an agency of its own. Meanwhile though, it runs a rail system through at least four different counties, a good handful of municipalities, and is also subject to California state law enforcement jurisdiction. Conflicts between shutdown policies at any of these levels will create nightmares not just for users who will be unable to make emergency and other calls, but also for governments working at cross purposes and for carriers trying to decide whether they should give priority to commands from Oakland Police Department or the Alameda County Sheriff's Office.
The solution to this mishmash would be for the FCC to assert its ability to override all of these potentially conflicting (not to say likely unconstitutional) policies, and establish baseline rules that prevent local authorities from trying to build in communications kill switches. The FCC's authority to preempt state and local laws on wireless communications is clear and well-established, and we can not only ensure consistency, but hopefully, consistent protection for free speech.
SOP 303 and a National Shutdown Center
One of the things that many commenters mentioned was “SOP 303.” This is a procedure designed some years ago. The idea is that if local law enforcement sees a need to interrupt service, they call the DHS's National Coordinating Center for Telecommunications, who asks them a series of questions. If local authorities answer them satisfactorily, NCC calls up the telecom carriers and asks them to shut their systems down. Plenty of carriers have endorsed this proposal as something they're fine with. In their case, they at least get the certainty of knowing when to act, and not dealing with contradictory information. However, its effects on civil liberties aren't quite as pretty.
While the text of SOP 303 itself seems to be secret, the descriptions we have of it are enough to indicate that it falls far short of what the First Amendment requires for a prior restraint of speech. No court ever reviews the shutdown request (a constitutional requirement), either before or after the shutdown happens, and there doesn't seem to be any transparency or oversight into the process at all.
There's a number of other arguments we also address in these comments, but I want to end with the observation that many proponents of shutdown policies try to emphasize their genuine concern for the First Amendment by stressing the need to balance public safety and civil liberties. This is often a false dilemma, and is clearly so here. In the cases of wireless emergency communication, both the needs of free speech and public safety require that communications remain working, not subject to a network of kill switches, each in the hands of different agencies at different levels. Ensuring that shutdown policies don't proliferate will keep users both safe and free.