BART Needs Ability to Cut Cell Service, Agency Tells FCC

"BART recognizes and respects the public’s need for access to cellular phones and other wireless devices, both for safety and convenience and that such services should be kept available, except in extreme circumstances,” BART said in its response to the public notice (http://xrl.us/bm5wfp). “BART is concerned, however, that, as the agency responsible for the public safety of more than 350,000 passengers each weekday, that it must have the tools at its disposal to protect that public from wrongful use of wireless devices, as they can be used as an instrument for doing harm to passengers and BART employees.” A temporary service shutdown “under extreme circumstances where harm and destruction are imminent, is a necessary tool to protect passengers and respond to potential acts of terrorism or other acts of violence,” BART said.

BART cutoff policy “requires a determination that strong evidence of imminent unlawful activity exists and that temporary interruption of cellular service is essential to protect against potential harm to passengers, employees and/or public property. BART’s policy requires prompt reporting of interruptions to first responders and the district’s governing Board of Directors,” the authority said. “The overarching goal of the policy is to permit the District this potential tool to protect the public, while balancing the important interests that same public has in having access to these communication devices."

"Wireless service interruption for public safety reasons should only be considered as a last resort,” Verizon Wireless said in its comments. “Wireless customers and the carriers that serve them need to know that the risks and benefits of ordering an interruption have been thoroughly considered, along with potential alternatives, and need government authorities to speak in a single, clear and consistent voice.” Verizon encouraged the FCC to embrace the Department of Homeland Security’s “Emergency Wireless Protocol” (EWP) for service cutoffs. “Verizon Wireless understands that there may be some cases where shutting down wireless service to an area is necessary,” the carrier said (http://xrl.us/bm5wem). “In such cases, wireless carriers need a process for ensuring that the decision to shut down the network has been appropriately vetted and that the request comes from a single, reliable source."

CTIA also called on the FCC to base any policy on DHS’s EWP (http://xrl.us/bm5wg8). “This process was developed under the President’s National Security Telecommunications Advisory Committee, in coordination with representatives from the FCC, the Department of Homeland Security, the Federal Bureau of Investigation, the New York Department of Homeland Security and other government representatives, as well as private sector stakeholders,” CTIA said. CTIA supports “a single protocol by local, state, and Federal agencies,” the filing said. “The Public Notice suggests that some states and/or localities may seek to establish their own procedures for effectuating a wireless service interruption, separate from the existing Federal protocol. ... CTIA is very concerned that the development of multiple protocols would not only waste resources, but would (more dangerously) sow confusion and delay during situations where coordination and efficiency is paramount."

The ACLU weighed in against any policy that could be used by the government to prohibit free speech. “Concerns are twofold,” ACLU said (http://xrl.us/bm5wif). “First, wireless network interruptions will necessarily silence significant amounts of protected speech along with whatever is being targeted by the interruption, making them fatally overbroad restrictions on First Amendment activity. Second, wireless network shutdowns are quintessential prior restraints on speech, and will rarely pass constitutional muster."

But the California Public Utilities Commission warned the FCC not to override the power of the states in this area. “While the FCC has plenary jurisdiction over wireless carriers, it does not have jurisdiction over a state or local governmental or law enforcement agency’s ability to determine what action is necessary to address immediate threats to public safety,” the CPUC said (http://xrl.us/bm5wnd). Last summer’s BART incident also “implicates the CPUC’s jurisdiction over rail safety,” the commission said. “The FCC does not have jurisdiction to preempt CPUC rules and regulations concerning rail safety.”