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Today, Public Knowledge, joined by a wide variety of consumer, civil rights, and civil liberties groups, urged the FCC to immediately pass rules that would prevent local authorities from ordering a shutdown of wireless services the way that BART did earlier this month. As Harold’s earlier blog post points out, we don’t even need to get to the (extremely pressing and important) First Amendment issues to find that BART’s actions violated the law—the Communications Act, to be precise.
This petition isn’t about punishing BART, though—it’s about making sure that other local authorities won’t make the same shortsighted and dangerous mistake in the future. To that end, it asks for the FCC to declare that local government shutdowns of cellular services violate the Communications Act in one or more of the following ways:
1. Common carriers of telecommunications, as well as their agents, trustees, and receivers, are prohibited by law from discontinuing, reducing, or impairing service. This applies both to landline and wireless telephone service. If BART was acting as a carrier, or an operating trustee or agent of a carrier, it violated the Communications Act.
2. Governments can’t order shutdowns of telephone service. There’s a lot of case law on local governments, ranging from state attorneys general to local police officials, calling up phone companies and trying to get them to disconnect gamblers, bookies, and other sorts of people using phones in the commission of alleged crimes. The case law, certainly in California, and in other states, too, says they can’t actually do that just based on the suspicion that a crime is being committed. When Earl Warren was the Attorney General of California, he couldn’t do it. The infamous Bull Connor of Birmingham couldn’t do it, either. Earl couldn’t, Bull couldn’t, BART can’t.
3. Even acting just as a third party with access to a power switch, BART can’t turn off cell service to others. The Communications act prohibits anyone from willfully interfering with wireless communications of licensed providers. That means mucking about with the calls of anyone on the wireless cell phone network is running afoul of the Communications Act.
The consequences of an arbitrary cutoff of cellular service can be extraordinary. In emergency situations ranging from a relatively small earthquake to a moderate storm to a devastating tsunami, individuals rely upon their mobile devices to receive alerts, call for help, and contact loved ones. Often, decentralized and user-generated communications are more efficient and robust ways of getting vital information out to others, and it helps no one to deprive the public of that capability when it’s needed most. Add to this the importance of ensuring that local governments don't abuse their power to suppress speech, and we can see that this sort of communications shutoff is both illegal and a very bad idea.