Public interest groups led by Public Knowledge asked the FCC...

Bay Area Rapid Transit District (BART) violated the Communications Act Aug. 11 when it “deliberately interfered” with CMRS access by shutting down wireless services at four stations to head off a feared riot (WID Aug 16 p6). The FCC is investigating the shutdown. “As the Commission itself has recognized … members of the public increasingly rely on CMRS for emergency communication,” the petition said. “Unilateral action by law enforcement, however well-intentioned, risks depriving the public of vital emergency communications at the worst possible moment. Because any impairment of CMRS impacts both critical issues of public safety and important principles of free expression, the Commission must act swiftly to clarify that local authorities may not turn off wireless networks before other local jurisdictions seek to replicate the actions of BART.” The groups said that “despite public outcry and critical news coverage” BART has released statements “attempting to justify its actions, and in fact has announced that it plans to assess in what future instances further shutoffs will be deemed appropriate, including, apparently, whether such decisions will be made according to an as-yet unformulated policy of its board of directors, or on an ad hoc basis by BART staff.” While BART’s source of authority for shutting CMRS service was unclear, it could only take the action “pursuant to one of three theories: as a network operator or agent of a network operator, as an agent of state or local government exercising police power, or as a private actor,” the petition said. “In each case, however, such a shutoff conflicts with the law.” As a network operator, BART “would be subject to Section 214(a), which prohibits discontinuing or impairing service without prior authorization from the Commission,” the groups argue. “As a government agent exercising police power, BART would be in conflict with existing case law, which prohibits disruption of telecommunications networks on mere suspicion of illegal activity and grants the FCC authority to exercise its preemptive power consistent with the law. As a private party, BART would be in violation of Section 333, which prohibits any person from willfully interfering with any station licensed or otherwise authorized under the Act.” The Broadband Institute of California, the Center for Democracy and Technology, the Center for Media Justice, the Electronic Frontier Foundation, the Media Access Project, the Minority Media and Telecommunications Council and the National Hispanic Media Coalition signed the petition.