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

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

By Harold Feld August 23, 2011

I suppose I am really a telecom lawyer at heart. My reaction to the news that the Bay Area Rapid Transit (BART) police shut down cellphone networks in a number of stations on August 11 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 this 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 for 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. I elaborate on the legal reasoning below.

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Reply to
Monty Solomon
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Suppose I have a femtocell or cellphone extender in my residence (where cellphone service is otherwise dead), and I'm hosting some kind of big semi-public community event (or my teenage kid is having a big bash). Maybe I don't entirely trust some of the attendees not to run up big charges on my dime -- or call uninvited or unwanted attendees to crash the event. So, I just unplug my connection for the duration of the event. Am I "shutting down a phone system"?

If BART is required by law or contract to provide phone connectivity inside its facilities -- or to let the phone company have access to their property set up, maintain and operate such facilities -- that's one thing. The resulting facilities would definitely seem to be part of "the phone system".

But if BART, more or less voluntarily, as a service to its patrons, installs, maintains and operates at its own expense facilities that allow its patrons to "connect to the outside phone system" -- well, that seems like another matter.

[Not expressing any factual assessment either way of how BART's facilities are really provided. But if they're to be considered "part of the phone system", rather than just some private facilities that connect to the phone system at some demarc on the outside wall, that should be very clearly understood by all concerned.]
Reply to
AES

Apples and pretzels comparison. BART did not turn off a "central office", nor had any intention of doing. The suspension was confined to restricted areas within only limited certain areas (subway portions) of its own property.

Note that a business does not violate free speech or anything else if it shuts off telephone service to its employees or forbids them to use their cell phones within the building.

Here is the BART statement. It makes sense.

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Reply to
Hancock4
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This actually 2 seperate problems. As far as charges on your dime, I don't think this would be a problem. Each phone has its own esn/cell number and would be charged accordingly. The second could be a problem, but if the femtocell is dead, can they get service by just stepping outside? Incoming calls should not be a problem, because a phone must register itself with the femtocell to tell the system that calls to it can be routed over the femtocell.

BTW, the term "femtocell" is a registered trademark of (I think) AT&T. I have one from Sprint and its called an "AirAve".

Reply to
Rich Greenberg

Optus in Australia calls it a "Home Zone", which I'd say is a reasonably neat descriptor:

The video on that page is also a reasonably neat way of conveying to non-techie types what a femtoc... pardon me, a "Home Zone" device -- does.

Reply to
AES

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