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The comments, also signed by the Benton Foundation, Free Press, the National Hispanic Media Coalition, Minority Media Telecommunications Council, and the Open Technology Institute of the New America Foundation, respond to the FCC's Notice of Inquiry, which asked about what procedures should be followed when government wanted to shut down communications during a crisis.
The joint public interest comments emphasized that having a policy for emergency wireless communications shutdowns already starts from an odd set of assumptions. Throughout the country's history, the primary concern with wireless communications in an emergency was ensuring that they stayed up, not shutting them down. In many ways, the existence of emergency communications services, and telecom law itself, stems from lessons learned from the sinking of the Titanic a hundred years ago last month. Disaster planning through the Cold War, after the September 11th attacks, and after Hurricane Katrina all emphasized continued uptime and maintaining important links between users, as well as to and from emergency personnel.
This whole process got started after an outcry over the shutdown of cellular telephone service on the Bay Area Rapid Transit system underneath San Francisco. BART employees, after running it by their board, shut down antennas that transmitted cell signals to the tunnels in anticipation of a protest they wished to disrupt. Though the protest didn't occur that day, passengers throughout several stations and on trains were denied access to communications services. Following harsh criticism of this decision and calls (including by Public Knowledge) for rules prohibiting future shutdowns, BART backtracked and said it would institute a policy governing such shutdowns in the future. The FCC then announced it was looking into these issues, and asked a series of questions about the practical, technical, and legal questions surrounding wireless service interruptions and policies about them.
That history of the proceeding also highlights a separate major concern of our comments, which is that government-initiated shutdowns threaten First Amendment rights. Shutting down wireless service in anticipation of a protest, even a disruptive one, is a prior restraint on speech—one of the most constitutionally reviled forms of speech restriction in law. Add to this that wireless shutdowns will inevitably restrain the speech of innocent third parties, and the legal justifications for such a policy begin to thin even more.
The point of the comments is that, balancing the severe constitutional, legal, and public safety harms that can result form a shutdown against the exceedingly rare circumstances (and remote possibilities of those circumstances) where one would be beneficial, the default should be to keep the systems running. Putting in place an easy "kill switch" mechanism would just encourage its use in increasingly trivial and inappropriate situations.