Join Us For The Net Neutrality Day Of AdvocacyRSVP For September 27-28
I suppose I am really a telecom lawyer at heart. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations on August 11 had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM? From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.
Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if this were a novel question rather than something settled by decades of telecom law.
Also missed by most: this goes well beyond BART. If BART gets away with including “we can shut down cell phone service” in its tool box you can guarantee that other local law enforcement agencies will start copying this – and all for the best of reasons. Because what could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? BART emphasizes the narrowness of the impact. But Montgomery County, MD, where I live, is worried about an outbreak of flash mobs of teenagers that materialize to raid local stores. Suppose they decide to start turning off the phone grid in neighborhoods they believe are “at risk?” Sure, lets just knock out phone service for a neighborhood for a few hours. What could be the harm – and it’s all for a good cause, right?
There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless. I elaborate on the legal reasoning below.
First, for those who think cell phones are somehow not real phones for legal purposes, I assure you they are. Section 332(c) of the Act defines “Commercial Mobile Radio Service” aka CMRS aka cell phones as Title II telecommunications common carriers. To translate for you non-telecom folks, your wireless phone is as much a telephone as your landline phone (more, actually, if you use some form of voice-over-IP service like cable or Vonage, which reside in regulatory no-man’s land).
So interrupting access to a cell phone network is not about tweets and Facebook and other Title I/information services. Shut off a cell phone node and you are messing with a phone system. Which brings me to the next point: the desire of law enforcement to mess with phone service is not new. We have lots of settled law stating that you as a subscriber have a right to phone service. That right applies just as much in wireless as in traditional wireline. The duty to serve means something different in wireless, but it still derives from the same Section 202 responsibility to serve anyone who asks without prejudice.
Nor does BART need to be a network operator itself to fall within the jurisdiction of the statute. Mind you, if they are it makes direct jurisdiction easier. Section 214(a) prohibits a network operator from discontinuing Title II phone service without notifying the FCC first. Section 216 applies the same rule to any “receiver or trustee,” and Section 217 applies the same rule to any “agent.” So if BART acted as a network operator, or on behalf of a network operator, they are directly subject to Section 214(a) and the relevant provisions of the FCC and the CPUC directed to carriers and prohibiting a unilateral interruption of service without following the appropriate procedures. It would also be worthwhile to know whether the carriers BART contacted acquiesced in the shut off.
But more likely BART acted in its capacity as a public safety/law enforcement authority, and its authority as a landlord with physical control over the means by which customers accessed the Title II mobile network. What is the applicable law then?
In California, where this took place, the governing case is People v. Brophy, 120 P.2d 946 (Cal. App. 1942). In Brophy, the California Court of Appeals held that yes, residents of California have a right to phone service. The federally protected right to access the phone network derives from the duty of common carriage imposed by Sections 201 and 202 of the Act. The California Court of Appeals further found that Earl Warren, then the California Attorney General, could not order the phone company to discontinue service to a person the Attorney General suspected of running a gambling operation by use of the telephone. The court explicitly found that only the California Railroad Commission (predecessor to the California Public Utilities Commission) can give an order in California to suspend phone service.
Relevant to the instant case, and for consideration by the BART Board of Directors when they meet tomorrow to discuss what policy to adopt on future shut downs (and by the CPUC, should it chose to exercise its authority in this case), the same statutory provisions the court found relevant in Brophy apply to CMRS service. CMRS is a common carrier subject to Sections 201 and 202. Indeed, these are the fundamental and unwaivable provisions of CMRS service.
Like the Attorney General in Brophy, the BART is an instrumentality of the State of California. As in Brophy, the mere allegation that someone (or some group of someones) may use their phone for illegal purposes most emphatically does not confer authority to unilaterally shut off access to the phone network – even if that phone network is physically located within the BART. Why? Because the BART is an instrumentality of the state of California and is geographically in California. There is no BARTistahn, and the Directors do not get to decide this on their own.
It is particularly troubling in this case because, by their own admission, the BART had knowledge of a situation in which they wanted to turn off access to the cellular network for some days before the event. Had they troubled their General Counsel, they could have gone to the California Public Utility Commission and gotten a legal order for permission to turn off access to the phone network. Perhaps as part of considering a proper procedure for how to handle shut off of cell service going forward they will begin as follows: a) recognize this is not a public forum case; b) comply with California law and get a legal ruling from the CPUC; and c) follow the CPUC ruling.
The BART and Bull Connor
We will savor the irony that the most eloquent annunciation of the right of individuals to access phone service without interference from law enforcement (absent due process) takes us from Earl Warren to Eugene "Bull" Connor.
In Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955), Mr. Connor, in his capacity as Commissioner of Public Safety for the City of Birmingham, ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process. As the Court observed:
The present tendency and drift towards the Police State gives all free Americans pause. The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic. Once we assumed axiomatic that a citizen was presumed innocent until proved guilty. The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.
We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger. From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.
The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety. What is the source of Mr. Connor’s authority to issue such an order? We know of none. And we hold that none exists.
If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense. It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.
These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6. The gratuitous and arbitrary action of a police official is no justification for an abridgment of this right. To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist. The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process. No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.
Similarly, the BART's possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.
Mind you, I don’t ignore the First Amendment stuff. It’s extremely important, and one of the reasons why we have a protected federal right to phone networks. Even if the BART could get a suitable order from the CPUC, it strikes me as a phenomenally bad idea. And, of course, the CPUC should weigh the constitutional concerns when deciding whether to grant BART authority to shut down cell access in its system. But not of that really matters on a plain vanilla question of telecom law, well settled in the State of California for nearly 70 years and something BART could have looked up for itself before it took matters into its own hands.
Why This Matters
One may argue the particulars of why the BART was justified, as a matter of state and federal law, or why they should be justified. That is a case which the BART should make to the CPUC, and potentially also to the FCC, in a proceeding which will allow the agencies with actual authority over the phone system to weigh the cost to individuals of being deprived of their federally protected right to phone service against the possible threat to public safety of maintaining phone service.
More importantly, imposing this kind of oversight prevents every single local jurisdiction from deciding that it can add "shut down wireless telephone networks" into its acceptable responses whenever the local jurisdiction thinks that would be a good idea. The Directors of BART only have to worry about BARTistahn and have a whole list of reasons why they absolutely should be able to do what they did. But the CPUC (and the FCC) need to worry about other cases that might come up. For example, what happens when the Chief of Police in LA decides to handle a riot by shutting off mobile phone service “to prevent coordination among rioters.” Want to know what happens when tens of thousands of people suddenly lose access to their ability to contact 911, to find out if family are OK, and to find a safe place to run to during a riot? It will not be pretty. Nor will it be pretty when local police decide to cut off service to whole neighborhoods because drug dealers use cell phones to communicate with each other.
Everyone has wonderful ideas about how they will totally use their unrestricted authority for the public good, and how nothing bad can possibly happen as a result. If one local government can do this on its own initiative, so can any other. And while no doubt your local authority in Springfield is the smartest bestest bravest most capablest authority in the entire world who would never make a mistake or abuse their authority, we all know the cousin marrying morons in Shelbyville would screw it up.
We routinely hear statistics about how for many people their cell phone is their only phone – and sometimes their only source of access to the Internet as well. Americans rely on their phone service remaining stable, dependable, and available at all times. Yes, everyone knows the frustration of dropped calls. But it is one thing to experience a dropped call or overloaded network. It is another thing for local authorities to decide to cut off service on their own initiative, without any restraint or oversight, for whatever reason they find compelling.
More than seventy years ago, Congress made a choice to take that option away from local authorities. It conferred jurisdiction on the FCC and the state Public Utility Commissions to provide oversight, and gave everyone a federally protected right to access the phone network. That right applies to all phone networks, whether wireline or wireless. Somebody might want to point that out to the BART Directors tomorrow.