CDT, PK, and EFF Wireless Shutdown Reply Comments

CDT, Public Knowledge, and the Electronic Frontier Foundation led a coalition of civil liberties organizations in filing comments in the FCC’s Inquiry into wireless service interruptions. Prompted in part by the Bay Area Rapid Transit Authority’s shutdown last August of cell service in BART stations to prevent organizers from protesting BART, the FCC initiated an inquiry into whether government or private actors can lawfully act to interrupt wireless service in emergency situations.

Analyzing wireless interruption through constitutional and statutory lenses, we concluded in our original comments that neither government — be it state, local, or federal — nor private parties can permissibly interrupt wireless service, and that such interruptions will likely do more harm than good in emergency contexts.

These reply comments supplement our original comments and reply to other comments filed in the proceeding. In particular, these reply comments highlight our conclusion that the government’s current secret protocol for wireless shutdowns, Standard Operating Procedure or “SOP” 303, fails to meet the requirements of the First Amendment, as does proposed California legislation meant to regulate wireless service interruptions.

These reply comments also raise significant questions about the true motivation of the BART shutdown, counter the argument that a First Amendment “public forum” analysis might justify wireless shutdowns such as in the BART case, and highlight the worrisome breadth of the new BART policy on wireless service interruptions. The comments further note that the range of opinions about the BART shutdown that are reflected in the many comments filed with FCC highlights the need for clear guidance from the FCC, and reiterate and expand on the original comments’ arguments that the FCC has authority to preempt local and state regulation of wireless service interruptions.