BART was wrong

Quantum Windbag · Aug 24, 2011

Live and learn. I was pretty sure that BART shutting down the cell phone service to prevent a protest was wrong, but it appears my reasoning was way off base.

It seems that we actually have a right to phone service, and it cannot be shut down simply because it inconveniences someone to have it up.

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-mans 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 stating that you as a subscriber have a right to phone service. That right applies just as much in wireless as in traditional wireline. The duty to serve means something different in wireless, 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 the 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?
In California, where this took place, the governing case is People v. Brophy, 120 P.2d 946 (Cal. App. 1942). In Brophy, the California Court of Appeals held that yes, residents of California 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 Earl Warren, then 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.
Click to expand...

Why Shutting Down Cell Service Is Not Just Against The Law, It's a Really Bad Idea | Public Knowledge

I admit it, I was wrong.

MeBelle · Aug 25, 2011

hmmm, don't think I've ever heard of 'flash mobbing by land line'.

Disrupting business and undermining the safety of the public in order to 'protest' is illegal also.

Whatdoya' think would have happened had the flash mob occurred and people had been hurt?
Who would have been held responsible?

BART!

editec · Aug 25, 2011

Controlling the people's RIGHT to communication with each other is the ACT OF TOTALITARIANS.

Freedom of speech implies that one must also have the right to communicate.

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BART was wrong

Quantum Windbag Gold Member

MeBelle Mebellien Mothership © Supporting Member

editec Mr. Forgot-it-All

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BART was wrong

Quantum Windbag Gold Member

MeBelle Mebellien Mothership © Supporting Member

editec Mr. Forgot-it-All

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