FCC Chairman Julius Genachowski said Friday the FCC would provide guidance on the circumstances under which cell phone service can be interrupted, and said it would be a "high bar."
That came in a statement praising Bay Area Rapid Transit (BART) for adopting a new polity Thursday that cell phone service could only be interrupted by the transit authority under "extraordinary circumstances" like detonating bombs of facilitating violent crimes. "BART took an important step in responding to legitimate concerns raised by its Aug. 11, 2011 interruption of wireless service. As the policy BART adopted recognizes, communications networks that are open and available are critical to our democracy and economy," said Genachowski.
Public Knowledge has joined with a number of interest groups to ask the FCC to clarify that the Bay Area Rapid Transit (BART) shut-down of cell phone service Aug. 11 was out of bounds.
For fear of disruptions related to the public protest, BART cut off cell service to its stations. It defended the move by saying that protesters had said they were planning to use mobile devices to coordinate disruptive activities -- a 'flash mob' protest of sorts -- at BART stations during rush hour. "BART temporarily interrupted service at select BART stations as one of many tactics to ensure the safety of everyone on the platform," it said.
"The intent of this cell phone interruption policy is to balance free speech rights with legitimate public safety concerns," BART Board President Bob Franklin said in announcing the new policy. "This policy, with input from the Federal Communications Commission, and the American Civil Liberties Union, will serve as a pioneering model for our nation, as a reference to other public agencies that will inevitably face similar dilemmas in the future."
"The FCC is dedicated to preserving the availability and openness of communications networks," the chairman said Friday. "It is also committed to ensuring that communications technologies are harnessed to protect the public, and that first responders and other public safety officers have the tools they need for their important work."
He said that for cell phone service to be interrupted, it must clear "a high substantive and procedural bar. I have asked Commission staff to review these critical issues and consider the constraints that the Communications Act, First Amendment, and other laws and policies place upon potential service interruptions. We will soon announce an open, public process to provide guidance on these issues."
"I think the commission's willingness to look into this question is welcome and we hope the FCC can provide guidance that will preclude this kind of problem elsewhere in the country," said Andrew Schwartzman of Media Access Project, which filed the petition along with Public Knowledge. "We know that the commission has been looking seriously at our petition and this certainly starts the process of addressing the issues we raised."
The petition argues BART violated Title II of the Communications Act by deliberately interfering with Commercial Mobile Radio Service. If state or local governments want to interrupt such service, they argue, they need to petition state commissions or the FCC for guidelines and procedures, absent which such interruptions are illegal.
BART's board adjusted that bar somewhat from an initial Nov. 3 proposal, deciding that rather than give BART's GM discretion over when to interrupt, there needed to be an operational procedure for making the decision. BART must also report any interruptions to first responders ASAP.