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Free Expression

CDT to FCC: Declare BART Cellular Shutdown Unlawful

Today, CDT joined Public Knowledge and a coalition of technology and media policy groups in filing an emergency petition with the Federal Communications Commission protesting Bay Area Rapid Transit (BART)’s shut-down of cell phone service within its system earlier this month. As we discussed last week, BART’s decision to terminate cell phone service in portions of the transit system, in a failed attempt to thwart protesters, raises significant First Amendment concerns and prompted some to compare BART’s actions to the type of mass censorship we saw in the Egyptian revolution this spring.

BART’s preemptive disconnection of a communications network also sets a terrible example for local authorities throughout the U.S. and likely violated the federal Communications Act. Today’s petition asks the FCC to make a declaratory ruling that BART violated the Communications Act when it deliberately interfered with its customers’ access to cellular networks, and further to declare that local law enforcement does not have the authority to suspend or deny Commercial Mobile Radio Service (CMRS) without an order from the appropriate court, state commission, or the FCC itself.

As we note in the petition, “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.”

BART’s unilateral action circumvented established procedure in both federal and California state law, which prohibit local authorities from making broad and unconstrained decisions that threaten the integrity of communications networks. To prevent other authorities from following suit, we need a clear statement from the FCC that such activity is unacceptable.