Forget The First Amendment, BART Messed With The Phone System. Violated CA and Federal Law.

I suppose I am, at heart, really a telecom lawyer after all. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations had nothing to do with democracy, the First Amendment, Tahrir Square, etc. With all deference to the importance of these concerns, my reaction was WHAT DO YOU MEAN THESE IDIOTS MESSED WITH THE PHONE SYSTEM! From my perspective, and the perspective of traditional telecom law, BART could just as well have turned off the local central office and all this chatter about whether or not BART is a public forum is just a distraction.

Obviously, however, no one at BART thinks of cell phones as the phone system. In BART’s open letter explaining what they did and why it was cool, BART focuses on the First Amendment /public forum issue and completely skips the fact that they shut off a phone system. Mind you, I suppose I can’t blame them – much. A number of folks are asking if there is a right to cell phone service as if there were a novel question rather than something settled by decades of telecom law.

Also missed by most: this goes well beyond BART. If BART gets away with including “we can shut down cell phone service” in its tool box you can guarantee that other local law enforcement agencies will start copying this – and all for the best of reasons. Because what could possibly go wrong when you pull the plug on a critical piece of infrastructure whenever some local police chief or city council person or whoever decides they need to do something about these “flash mobs” or “rioters” or whatever? BART emphasizes the narrowness of the impact. But Montgomery County, MD, where I live, is worried about an outbreak of flash mobs of teenagers that materialize to raid local stores. Suppose they decide to start turning off the phone grid in neighborhoods they believe are “at risk?” Sure, lets just knock out phone service for a neighborhood for a few hours. What could be the harm – and it’s all in a good cause, right?

There is a reason we do not mess with the phone system, and why that doesn’t change when the phone system is wireless.  Legal reasoning below . . . .

First, for those who think cell phones are somehow not real phones for legal purposes, I assure you they are.  Section 332(c) of the Act defines “Commercial Mobile Radio Service” aka CMRS aka cell phones as Title II telecommunications common carriers. To translate for you non-telecom folks, your wireless phone is as much a telephone as your landline phone (more, actually, if you use some form of voice-over-IP service like cable or Vonage, which reside in regulatory no-man’s land).

So interrupting access to a cell phone network is not about tweets and Facebook and other Title I/information services. Shut off a cell phone node and you are messing with a phone system. Which brings me to the next point: the desire of law enforcement to mess with phone service is not new. We have lots of settled law on this that you have a right to phone service, and that right applies just as much in wireless as in traditional wireline. The duty to serve means something different, but it still derives from the same Section 202 responsibility to serve anyone who asks without prejudice.

Nor does BART need to be a network operator itself to fall within the jurisdiction of the statute. Mind you, if they are it makes direct jurisdiction easier. Section 214(a)  prohibits a network operator from discontinuing Title II phone service without notifying the FCC first. Section 216 applies if same rule to any “receiver or trustee,” and Section 217 applies the same rule to any “agent.” So if BART acted as a network operator, or on behalf of a network operator, they are directly subject to Section 214(a) and the relevant provisions of the FCC and the CPUC directed to carriers and prohibiting a unilateral interruption of service without following the appropriate procedures. It would also be worthwhile to know whether the carriers BART contacted acquiesced in the shut off.

But more likely BART acted in its capacity as a public safety/law enforcement authority, and its authority as a landlord with physical control over the means by which customers accessed the Title II mobile network. What is the applicable law then?

Allow me to site two relevant cases here. The first is People v. Brophy, 120 P.2d 946 (Cal. App. 1942). In Brophy, the California Court of Appeals held that yes, residents of Califronia have a right to phone service. The federally protected right to access the phone network derives from the duty of common carriage imposed by Sections 201 and 202 of the Act. The California Court of Appeals further found that no, the California Attorney General could not order the phone company to discontinue service to a person the Attorney General suspected of running a gambling operation by use of the telephone.  The court explicitly found that only the California Railroad Commission (predecessor to the California Public Utilities Commission) can give an order in California to suspend phone service.

Relevant to the instant case, and for consideration by the BART Board of Directors on Wednesday (and by the CPUC, should it chose to exercise its authority in this case), the same statutory provisions the court found relevant in Brophy apply to CMRS service. CMRS is a common carrier subject to Sections 201 and 202. Indeed, these are the fundamental and unwaivable provisions of CMRS service.

The BART is an instrumentality of the State of California – like the Attorney General in Brophy. As in Brophy, the mere allegation that someone (or some group of someones) may use their phone for illegal purposes most emphatically does not confer authority to unilaterally shut off access to the phone network – even if that phone network is physically located within the BART. Why? Because the BART is an instrumentality of the state of California and is geographically in California. There is no BARTistahn, and the Directors do not get to decide this on their own.

It is particularly troubling in this case because by their own admission, the BART had knowledge of a situation in which they wanted to turn off access to the cellular network for some days before the event. Had they troubled their General Counsel, they could have gone to the California Public Utility Commission and gotten a legal order for permission to turn off access to the phone network. Perhaps as part of considering a proper procedure for how to handle shut off of cell service going forward they will begin as follows: a) recognize this is not a public forum case; b) comply with California law and get a legal ruling from the CPUC; and c) follow the CPUC ruling.

The BART and Bull Connor

We will savor the irony that the most eloquent annunciation of the right of individuals to access phone service without interference from law enforcement (absent due process) is found in Pike v. Southern Bell Tel. &Telegraph Co., 81 So.2d 254 (Ala. 1955). If the good directors of BARTistahn and their supporters dislike the comparison well, too bad. Law is law and you take your precedent where you find it. In Pike, Commissioner of Public Safety Eugene “Bull” Connor ordered Southern Bell to remove the telephone of one Louis Pike, described by Mr. Connor as “a negro” of “questionable character” alleged by Mr. Connor to be a “well-known lottery operator in the city” and to be using his phone for unspecified “illegal purposes.” Reviewing cases from other jurisdictions (including People v. Brophy), the Alabama Supreme Court found that the right of every citizen to use a phone was guaranteed by federal law and could not be deprived without due process.  As the Court observed:

The present tendency and drift towards the Police State gives all free Americans pause.  The unconstitutional and extra-judicial enlargement of coercive governmental power is a frightening and cancerous growth on our body politic.  Once we assumed asaxiomatic that a citizen was presumed innocent until proved guilty.  The tendency of governments to shift the burden of proof to citizens to prove their innocence is indefensible and intolerable.

We are not able to glean from the bare conclusions set up in the letter of the Commissioner, whether it is claimed that the “illegal” use of the telephone was by the appellant, her husband, or a total stranger.  From aught that was alleged in the plea, except for the conclusion of the Commissioner, no “illegal” use of any type was made of this telephone by any one.

The notice alleged to have been received by the Telephone Company was couched in the terms of a direct order from the Commissioner of Public Safety.  What is the source of Mr. Connor’s authority to issue such an order?  We know of none.  And we hold that none exists.

If we took a contrary view, it would naturally flow and follow that the telephone company would be justified in acting on the notice of any over-zealous law enforcement official who, without evidence, and on mere suspicion, is impressed with the bad character or occupation of a particular telephone subscriber. The letter from Commissioner Connor set up in the plea is no defense.  It is the Telephone Company’s burden to show that the use being made of the telephone did, in fact, justify its removal.

These depredations of a subscriber’s legal right to telephone service constitute a denial of due process guaranteed by the Constitution of 1901, art. 1, § 6.  [***17]  The gratuitous and arbitrary action of a police official is no justification for an abridgement of this right.  To hold that the Telephone Company is justified in discontinuing service by “order” of a police official would require judicial recognition of a police power which does not exist.  The bald assertion of an executive officer, be he the Attorney General of the United States or a constable of some remote beat, cannot be accepted as a substitute for proof in the judicial process.  No presumption arises as to the sufficiency of evidence based on a law enforcement officer’s conclusions.

 

Similarly, the possession of “intelligence” that individuals may use their mobile phones to coordinate illegal activity allows the BART — or any other local law enforcement authority — does not confer “police power that does not exist.” BART must still go to the California agency with actual jurisdiction, the CPUC, and obtain a legal order authorizing the shut down of cellular service.

Mind you, I don’t ignore the First Amendment stuff. It’s extremely important, and one of the reasons why we have a protected federal right to phone networks. Even if the BART could get a suitable order from the CPUC, it strikes me as a phenomenally bad idea. And, of course, the CPUC should weigh the constitutional concerns when deciding whether to grant BART authority to shut down cell access in its system. But not of that really matters on a plain vanilla question of telecom law, well settled in the State of California for nearly 70 years and something BART could have looked up for itself before it took matters into its own hands.

Why This Matters

One may argue the particulars of why the BART was justified, as a matter of state and federal law, or why they should be justified. That is a case which the BART should make to the CPUC, and potentially also to the FCC, in a proceeding which will allow the agencies with actual authority over the phone system to weigh the cost to individuals of being deprived of their federally protected right to phone service against the possible threat to public safety of maintaining phone service.

More importantly, imposing this kind of oversight prevents every single local jurisdiction from deciding that it can add the ability to shut down wireless telephone networks into its acceptable responses whenever the local jurisdiction thinks that would be a good idea. The Directors of BART only have to worry about BARTistahn and have a whole list of reasons why they absolutely should be able to do what they did. But the CPUC (and the FCC) need to worry about other cases that might come up. For example, what happens when the Chief of Police in LA decides to handle a riot by shutting off mobile phone service “to prevent coordination among rioters.” Want to know what happens when tens of thousands of people suddenly lose access to their ability to contact 911, to find out if family are OK, and to find a safe place to run in a riot? It will not be pretty. Nor will it be pretty when local police decide to cut off service to whole neighborhoods because drug dealers use cell phones to communicate with each other. Because everyone has wonderful ideas about how they will totally use their unrestricted authority for the public good, and how nothing bad can possibly happen as a result. If one local government can do this on its own initiative, so can any other. And while no doubt your local authority in Springfield is the smartest bestest bravest most capablest authority in the entire world who would never make a mistake or abuse their authority, we all know the cousin marrying morons in Shelbyville would screw it up.

We routinely hear statistics about how for many people their cell phone is their only phone – and sometimes their only source of access to the Internet as well. Americans rely on their phone service remaining stable, dependable, and available at all times. Yes, everyone knows the frustration of dropped calls. But it is one thing to experience a dropped call or overloaded network. It is another thing for local authorities to decide to cut off service on their own initiative, without any restraint or oversight, for whatever reason they find compelling.

More than seventy years ago, Congress made a choice to take that option away from local authorities. It conferred jurisdiction on the FCC and the state Public Utility Commissions to provide oversight, and gave everyone a federally protected right to access the phone network. That right applies to all phone networks, whether wireline or wireless. Somebody might want to point that out the BART Directors on Wednesday.

Stay tuned . . . .

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13 Comments

  1. Alex Cox says:

    ‘Decades of telecom law’ have NOT decided that there is a universal right to cell phone usage. Cell phones have not existed for decades. The cases the cell phone companies (and their water-carrier, the FCC) are relying on to beat BART were decided in 1942, 1955, and 1969 and referred to landlines.
    The FCC is treating BART as a ‘common carrier’ because AT&T and Verizon want it that way; they want consumers using up those minutes, 24-7. But BART is also a people carrier. Until it chose to provide cellular service, there was none. BART bans drinking, smoking, eating, and loud music on its trains. Aren’t eating and drinking human rights, as well?
    The argument that cell-phone users’ right trumps BART’s right to operate a railroad is highly individualistic and selfish. To claim that everyone needs 24-7 cell service so as to contact their families in an emergency is specious. The right to safe and reliable public transportation, and the right of public transport providers to set rules and to change them if necessary, are vastly more important.

  2. Joe Mamma says:

    >The right to safe and reliable public transportation, and the right of public transport providers to set rules and to change them if necessary, are vastly more important.

    HA! The right to public transportation, that’s a good one. There exists no such right, and you know that full well. Nice try though, shill.

  3. Barnabas S. says:

    @Alex Cox
    Your argument holds no ground. “BART” being a law enforcement entity as it is has no more unilateral authority to shut down a cell network than AT&T, Verizon, T-Mobile, etc do. BART is providing an extention of the greater nationwide cell network and whether the service existed prior to them establishing it or not does not give them the authority to turn it off. You conveniently left out the 911 aspect of cell networks being vital and only mentioned the need to keep in contact with family. Care to state your reasons for believing it is within BART’s right as a provider to deny a person access to the 911 service? So in the end, BART seriously overstepped their authority and whomever were party to the decision to shut off the cell network under their control solely to prevent a demonstration should be fired immediately.

  4. night owl says:

    > ‘Decades of telecom law’ have NOT decided that there is a universal right to cell phone
    > usage. Cell phones have not existed for decades.
    The first mobile phone was demonstrated in 1973 and the first commercially available phone went on sale in 1983, given that it is now 2011 ‘cell phones’ have existed for decades (28-38 years would in fact be multiple decades). Given that mobile phone service is classified as being Title II common carrier then they fall under the same rulings that effect any other Title II common carrier, which you helpfully point out the rulings were made in ’42, ’55 and ’69; again, that is decades of law regarding Title II common carrier services.

    BART only became a Telecommunications Common Carrier when they actually began operating a network. If they had done nothing to help or hinder cell phone usage in their system (like NYC’s MTA) they would not be in that position. Since they did start actually operating a phone network (of sorts) they became responsible for providing that service without prejudice. Once they begin taking action to prevent groups of people from accessing this service without due process or discretion BART violated the rights of those people.

  5. How does the law apply if they just decided to shut down SMS, or data services (ie. internet and twitter and some IM) but left voice services up? I would not like to learn they could do that, as that is probably what they mostly wanted to do. People would have to go back to old fashioned phone trees from the days before messaging services.

    I am not sure I like the CPUC doing it either, but they are still bound by the constitution.

  6. DK says:

    Interesting analysis and discussion, but why isn’t this question answered by 47 U.S.C. 253?

    § 253. Removal of barriers to entry
    (a) In general

    No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

  7. imp says:

    @Alex Cox: you do realize that trains were regulated as common carriers long before phones were?

  8. KoldFusion says:

    As a Telco installer I must say that rarely do people get a land line phone these days. Most of my days are spent doing IPTV and DSL.

    So I feel that cell phones due in fact not only count as a phone, but have almost replaced the common land line phone.

    At least give people 911 access. The main reason I treat my days work NDT (No Dial Tone) customers as #1 is because they may need 911 to save a life.

    911 is serious business and NOT to be fooled with.

    This whole BART thing is a result of lack of better ideas by thinking that is stuck inside the box.

    How about cameras all over the streets, better video forensics software, and talent from universities, followed up by strong prosecutions for offenders.

    Make examples out of people. Because even I know as a Canadian, that when you try to piss on the rights of an American… You are awakening a sleeping tiger.

  9. San Francisco has two subway systems, one municipal (Muni, serving only SF), the other operated by a regional authority (BART, serving the entire bay area). In downtown SF where these protests are occurring, BART and Muni run trains on two levels. BART installed cellular service in its tunnel, while Muni hasn’t.

    So no, this isn’t a case of BART shutting down “the people’s phone system,” its a matter of the agency taking security measures to operate as efficiently as possible by turning off services it formerly offered (the same as closing its toilets after 9/11, purportedly for security but probably just because it didn’t want to clean up after filthy vagrants).

    The brouhaha about BART shutting down its own tunnels’ cellular network, rendering its platforms as communications-encumbered as the neighboring Muni’s, is absurdly asinine. People who want to mess up the commute of others who actually have jobs and families to get to do not have some special right to use BART’s mobile network. BART is not jamming the mobile networks on the surface.

    Further, there are better ways to protest the tragic shooting of a guy fighting on BART platforms by the SWAT-like BART gestapo than obstructing other BART patrons. Why not take the protest to Oakland, and blame the violence upon the ghetto, drug-money enamored society that has created the need for a brute force police squad on the subway in the first place?

    I’m all in favor of the BART police scaling back their heavy-handed actions, but how about some personal accountability from the people who created the problem in the first place? This is not a populist uprising, it’s a reaction to a reaction to drug-money gang-bangers.

  10. PPNSteve says:

    No one is mentioning that BART is likely using “leaky coax” in its tunnels to provide access to these 3rd party cell providers.

    BART doesn’t have to allow this and IMO should have the right, as owner/manager of the tunnel systems, to terminate any 3rd party access.

    It is their “property” and BART is offering access as a service (likely getting paid too) to the providers. Again, IMO it should be and, as far as I know, subject to BART’s terms.

    In this case, BART LEA saw a security threat and took what appropriate action available withing their jurisdiction and the 3rd party offering of the cell signals was well with in their range.

    IANAY just saying from a contract / service provider POV.

  11. Watice says:

    So if I operate a femotcell in a public space, i can’t unplug it or shut it down because you believe i am a telcom provider? Your logic is severely flawed.

  12. g205 says:

    Telecoms engineer here (telephone switching systems).
    .
    In point of fact, mobile telephony services go back to the 1940s, when they used analog radio signal as carrier means.
    .
    But Harold the attorney’s point here is clear and it stands regardless of any nonsense about BART property or the rights of protesters. IF the law is as he claims then it is settled case law, then the following is necessarily true:
    .
    Cellphones are considered part of the public switched telephone network, per federal law. No-one has the right to suspend or discontinue telephone services to the members of the general public without due process of law. Due process is spelled out in regulations such as those Harold quoted. And BART, by extending cellphone service into its property (as with PAYPHONES: same outcome!), is bound by those laws and regulations.
    .
    BART would be within its rights to seek a decision from the CPUC whereby it could suspend cellular service in whole or in part when a public disturbance occurs on BART property. If the decision was granted, it would be lawful to suspend service. Case closed.
    .
    As for the 1st Amendment issues, these are resolved by the Brandenburg standard whereby speech may be limited or prosecuted that threatens immanent lawless action. Thus the protesters have no leg to stand on regarding a right to use their mobile phones to direct lawless action in the BART stations.
    .
    The protesters would be within their rights (and acting within the tradition of civil disobedience protest) to hold a sit-in whereby they simply went into the stations and sat down while holding signs and so on. This could be done in a manner that was nonviolent, nonthreatening, and totally effective at shutting down or hindering operation of the BART stations in question. However in doing so, as with their actions to date, they would be shooting themselves in both feet by merely angering the general public and reducing any prospect of sympathy for their cause.
    .
    As for the participation of Anonymous in these actions (while we’re on the subject:-), keep in mind that Anonymous is a “meme,” or idea, a “brand” that is self-appointed, a “franchise” without a contract, as if anyone could open a restaurant and call it a McDonald’s. Anonymous is at its best when it leaks documents that show clear violations of law and ethics by powerful corporations and their allies (look up the H.B. Gary leaks). But many members and sympathizers do not agree with actions of others, such as leaking the personal information of public employees. I know a few Anonymii and they are “highly displeased” with these recent actions. Once again, choose your targets wisely, or your action will backfire.

  13. @pcvcolin says:

    It doesn’t matter what anyone thinks who has been saying that cell phones can be turned off at BART’s whim. They can’t, plain and simple. There are a few basic reasons for this, but I’ll keep it to the following.

    “The telephone company has no more right to refuse its facilities to persons because of a belief that such persons will use such service to transmit information that may enable recipients thereof to violate the law than a railroad company would have to refuse to carry persons on its trains because those in charge of the train believe that the purpose of the persons so transported in going to a certain point was to commit an offense.” People v. Brophy, 49 Cal. App. 2d 15, 33 (1942)

    “A railway station is like a public street or park. Noise and commotion are characteristic of (its) normal operation(…)” “The railroads seek neither privacy within norexclusive possession of their station(…)” “(The railroads) therefore cannot invoke the law oftrespass against petitioners to protect those interests.” (…) “Had petitioners in any way interferedwith the conduct of the railroad business, they could legitimately have been asked to leave.” In Re. Hoffman (67 Cal.2d 845 (1967))

    “The First Amendment protects the opportunity to persuade to action whether that action be unwise or immoral, or whether the speech incites to action. Eisenstadt v. Baird, 405 U.S. 438

    “The claim and exercise of a constitutional rightcannot be converted into a crime.” Miller vs. U.S., 230 F. 486, 489

    No person shall willfully (…) interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act (…)” Title 47 U.S.C. 333

    I could go on all day long with this. But the basic point of it is: BART is wrong. Their decision was flawed. There is basically only one time when they can shut down their system and that is with the permission of the FCC and / or CPUC after first having applied to and through those entities. They may also be able to obtain maintenance waivers of some kind for “scheduled downtime.” But they cannot do so on a massive level such as they did, instead of targeting specific people for arrest who they felt were involved or about to be involved in criminal acts, they instead placed not only threat of sanction but a global sanction upon an entire community through restriction of speech, assembly, and right of transport. There are so many laws violated here I cannot even count them all. If someone sues BART it will be all over for them. You can also go to my website at http://globalrevolutionary.blogspot.com/ and scroll down to view content to see how to further deal with BART to preserve our freedoms and ensure that the rights of Americans are not trampled.

  14. […] Feld has an excellent analysis of the BART cellular telephone incident from the perspective of a telecommunications lawyer. “If BART gets away with including […]

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  1. […] Feld has an excellent analysis of the BART cellular telephone incident from the perspective of a telecommunications lawyer. “If BART gets away with including […]

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