PK, CPUC at Odds on BART Wireless Service Interruption
Public Knowledge and the California Public Utilities Commission squared off in reply comments to a March 1 FCC public notice on intentional interruptions of wireless service by government agencies seeking to protect public safety, disagreeing sharply on whether the FCC has authority to impose national rules. The FCC issued the notice after the Bay Area Rapid Transit District (BART) shut down wireless service at one of its stations for three hours last August to prevent a possible protest (CD May 2 p8).
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"Public Knowledge mischaracterizes certain California case law in a manner that implies (wrongly) that California lacks authority under its police power to order disconnection of telecommunications services,” the CPUC said (http://xrl.us/bm9xob). “Public Knowledge also makes broad, sweeping statements concerning the FCC’s ability to preempt state and local law that are not supported by the case law it cites.” CPUC said it understands Public Knowledge’s free speech concerns. “These concerns do not warrant blanket preemption by the FCC,” the commission said. “Determinations about the appropriate circumstances that may warrant an interruption of service for the protection of public safety, as well as the procedures used to effect such interruption, constitute exercise of state police powers over which the FCC has no jurisdiction.”
Public Knowledge fired back, noting there is little agreement on when such service shutdowns are appropriate (http://xrl.us/bm9xp5). “The clearly disparate judgments of when interruption is appropriate suggest that leaving such policies to multiple state and local authorities will only result in uncertainty,” the group said in reply comments. “The Commission should therefore exercise its preemptive powers to provide certainty to users, carriers, and authorities. ... As commendable as it may be for the trains to run on time, the prior restraint of individuals’ free speech (whether they planned to engage in protest or not) cannot be subject to train schedules alone.” The filing was also signed by the Center for Democracy & Technology, the Electronic Frontier Foundation, the Benton Foundation, Free Press, the Minority Media and Telecommunications Council, the National Hispanic Media Coalition and the Open Technology Institute at the New America Foundation.
The National Lawyers Guild Committee on Democratic Communications and Media Alliance said the FCC has the authority to impose rules on service interruptions. “CPUC’s comments ignore that the perceived immediate threat to public safety was an expression of free speech where some opposing views of BART would be expressed,” the group said (http://xrl.us/bm9xsq). “The speech in question was a pending demonstration to protest specific actions by BART and one of its employees. Without any demonstration having yet appeared, let alone any threat to public safety, BART acted to attempt to disrupt the demonstration by cutting off cell phone communications to prevent demonstrators from organizing and from communicating with each other. Neither BART nor the CPUC has given any reason why this action was necessary or how this pending demonstration was a threat to public safety.”
AT&T argued that the National Communications System’s Standard Operating Procedure 303, “Emergency Wireless Protocols,” adequately addresses issues raised by the FCC in the notice. “Comments filed in response to the Notice are nearly unanimous that interrupting wireless service should be discouraged,” AT&T said (http://xrl.us/bm9xrx). “AT&T agrees that interrupting wireless service should be an option of last resort, invoked only in exceptional situations in accordance with a standard set of rules to ensure that the inquiry arises from an authorized government or public safety official and relates to a credible threat.” SOP 303 “obviates the need for the Commission to engage in a process to consider the substantive questions posed in the Notice, all of which were considered in the process leading to the adoption of SOP 303,” AT&T said.
MetroPCS said in its reply comments it supports “a uniform nationwide process for governmental or quasi-governmental interruptions of service and opposes those commenters who seek to limit a carrier’s right to interrupt service on its own” (http://xrl.us/bm9xtg). “Some important common themes emerge from the diverse commenters,” MetroPCS said. “Most generally recognize the important role that wireless service can play in a crisis. ... Many commenters also agree that an established coherent uniform process must be in place for determining whether a wireless interruption should be implemented by the government in order to avoid ad hoc decision-making that would cause confusion among carriers, public safety officials, and private citizens.”