FCC Opens Inquiry Into BART Mobile Shutdown

Commission's authority in free speech case is unclear

The Federal Communications Commission officially stepped into the debate over the right of government authorities to shut down mobile services in the interest of public safety. The FCC's notice of inquiry issued yesterday is in response to a petition filed last August following the San Francisco Bay Area Rapid Transit (BART) shutdown of mobile cellphone service to prevent protests against a police action.

BART's action drew sharp criticism that cutting off mobile cellphone service at three of its four stations amounted to a violation of freedom of speech. 

In the inquiry, the FCC is seeking comment about its role under the Communications Act in providing legal or policy guidance for wireless service interruptions. Comments and reply comments are due April 30 and May 30.

“Any interruption of wireless services raises serious legal and policy issues, and must meet a very high bar. The FCC, as the agency with oversight of our communications networks, is committed to preserving their availability and openness, and to harnessing communications technologies to protect the public,” said FCC Chairman Julius Genachowski in a statement.

What the FCC's authority is in the matter is unclear. The petitioners, which included groups such as Public Knowledge, Media Access Project, Center for Democracy and Technology, and the Electronic Frontier Foundation, are looking for the FCC to rule on whether BART's action violated the Communications Act.

"The same wireless network that police see as a tool for rioters to coordinate is the same wireless network used by peaceful protesters to exercise our fundamental freedoms. More than that, in any event, the network will be necessary for people in the area to call for help or to let family members know they are not harmed," said Harold Feld, the legal director for Public Knowledge, in a statement.

TechFreedom, a technology think tank, says the FCC is on shaky ground and is likely overstepping its authority with the inquiry. "What BART did clearly violated the First Amendment….But we need a court to say so, not the FCC," said Larry Downes, TechFreedom's senior adjunct fellow, and Berin Szoka, TechFreedom's founder and president. "The state did not order the shutdown of the network, nor does the state run the network. BART simply turned off equipment it doesn’t own—a likely violation of its contractual obligations to the carriers. But BART did nothing that violated FCC rules governing network operators. To declare the local government an 'agent' of the carriers would set an extremely dangerous precedent for an agency with a long track record of regulatory creep."