BART cuts off subway cell phone service [telecom]

Fine. So tell us the correct term.

A property owner has a duty to provide a safe environment to people on the property and to maintain systems in working condition. The duty to keep the service working came about when it first started working.

I'm not a P.I. attorney in real life, nor do I play one on tv. But in case of a tort claim, the plaintiff's argument would be that delay in reaching rescue personnel aggravated the injury and BART has liability for that action.

So you think they have the right to shut down communication services but are imune from damages that arise subsequently from the foreseeable consequences of shutting down communication. I don't think that's a legal defense.

There are no facts, as BART wasn't acting on actual events, but fear of additional bad publicity. Also, based on events elsewhere in the world, there was the possibility of violence. That's the wrong reason to shut down communications.

That hypothetical is irrelevant to what BART did.

But if the state highway department acted similarly to BART, shutting down communications because they were trying to prevent people from reaching each other to coordinate a mass gathering, then yes, they'd be liable under a hypothetical similar to the one I offered.

The relevance is what, then?

Regardless of not being a federal license holder, a common carrier couldn't shut itself down under similar circumstances. BART shut down, so it's not a common carrier.

I'm not going to guess how common carrier law would apply in this case as transit districts aren't typically subject to a state public utility commission or if BART is statutorially defined as such. Sure, BART appears to be a common carrier.

When I rent property, I am not subject to the land owner's ability to prevent my access or use of the property during business hours because of something that might happen. BART is not "simply" acting as land owner granting an easement, right of way, or tenancy. They are controlling access for reasons of other than preventing conflict with train service.

This isn't a matter of greed. This is a matter of litigating whether BART's deliberate actions contributed to the injury.

That's the cellular provider's defense to a tort, not BART's defense.

I think it applies to offering carriage generally, not just to those with whom it's contracted for carriage.

So why cannot BART be a subcontractor with regard to a cellular service subscriber? This is comparable to a roaming situation. The foreign network is offering service to all subscribers of the connecting network without concern for why the subscribers would be using the service.

Yeah, well, it only appears to be a restriction on Congress based on reading its plain language. But you throw a bunch of lawyers at it, and it no longer means what it says it means.

The First Amendment has been incorporated against the states. Each state's constitution has free speech rights in it, many of them with stronger civil liberty than the language of the federal constitution appears to guarantee. But with incorporation, one size fits all nationwide and reported cases from other jurisdictions are influential on future judicial decisions. There is a particularly nasty case in which Shaker Height Rapid Transit (Cleveland) refused to allow a candidate's paid advertising on a car card, upheld on reasoning that the transit company was protecting passengers from intrusions and disturbances, even though other advertising was allowed and even though everyone suspected that it was favoritism.

Lehman v. City of Shaker Heights

majority and concurring opinion

dissenting opinion This is an interesting read, although the author makes his biases clear:

Would the Real First Amendment Please Stand Up?

IANALB I think a transit system is not a safe environment to all people under all circumstances, and cannot be made safe by any practical means. While a property owner might have a duty to provide an environment made as safe as practical, that doesn't mean "safe".

Those trains run on power from a third rail. Is the BART system obligated to prevent contact between the third raid and a drunkard who falls on the tracks, or a child who slips while running? I think not.

The BART system has extensive tunnels underneath bays and rivers. Is BART obligated to equip its cars for immersion in water and to provide adequate air reserves for passengers if it should occur? I doubt it: that's not practical.

BART is a public-transit system, and must therefore accept passengers who intend to do wrong while on the BART property. Is BART obligated to provide guards in every car in order to prevent crime? No, it isn't: the costs to the public outweigh the potential benefits.

The list goes on: there is no guarantee of safety in life.

It seems to me that the question would be "For how long"? If I sue the local fire department for not reaching my relative quickly enough to prevent his/her death, and show a film of the paramedics *walking* to the ambulance instead of *running*, I'd be laughed out of court: experience has shown that the benefit to the public which results from avoiding slip-and-fall injuries in firehouses outweighs any slight delay the practice may cause.

I'm confident that BART has procedures and personnel in place to assure timely response to unforeseen events. Were I employed by BART, and assigned to explain such a circumstance to the media, I would argue that a passenger's inability to access the cellular network _speeded_ _up_ the response, since control center personnel didn't have to waste time answering calls from whatever 911 center a cell phone happened to reach, and since they wouldn't be thrown off by inaccurate Latitude and Longitude information given by GPS-equipped phones, which IIRC are programmed to report the last valid location they register, even if it's two miles away at the other end of a tunnel.

They didn't shut down communications: they prevented the use of cellular telephones. The communications networks employed by BART, the SFPD, the SFFD, etc., etc., weren't affected. Those networks are separate from the cellular network for very good reasons. [snip]

If I rent a garage (i.e., an enclosed parking space for an automobile, not a service station) and subsequently decide to store a 55 gallon drum of gasoline inside it, is the property owner required to suffer the risk of fire or explosion?

I think that this is devolving into a chicken-little scenario. The sky may be falling, or it might not, but the notion that being deprived of the use of a cell phone is somehow going to alter the course of history is too far-fetched to be credible.

Bill

Hmmn. Has word of the 14th amendment not reached Chicago yet?

To return to the nominal topic at hand, cell phones work on licensed frequencies, so someone has FCC licenses for the cell sites in the BART stations. I'd be surprised if those licesnses didn't say something about service levels.

R's, John

You're trying to read too much into my quick comment which was not intended to be comprehensive. There's no absolute guarantee of safety and the individual must take some reasonable precautions, but the property owner simply isn't immune from liability in all circumstances that appear to be illogical to a casual observer.

Why yes, they are. It sounds stupid, but that's the law. As it happens, BART uses a covered third-rail system to prevent such injury, even though no passenger is ever supposed to be on the tracks under any circumstances.

Surely you've heard of this case:

Illinois Supreme Court upholds $1.5 million award against transit authority to estate of intoxicated Korean immigrant electrocuted on transit authority third rail when he went onto tracks to urinate; signs which said "Danger," "Keep Out" and "Electric Current" were inadequate warnings. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 605 N.E.2d 493 (1992).

He stepped off the platform and onto the right-of-way in order to urinate and died upon contact with the third rail. His blood alchohol level was .341.

Why were the warnings inadequate? The immigrant didn't read English. Even if the signs were in Korean, he was so blind drunk he wouldn't have been able to read them anyway.

You must have heard of Bodine v. Enterprise High School, often referred to as "the buglar who fell through the skylight case" although Bodine wasn't a burglar. In 1982, four friends were playing basketball at the school. One of them wanted to redirect a light that was interferring with their play. He climbed up on the roof, stepped on a skylight that had been painted out, and fell through, becoming a quadriplegic. He sued for millions but settled for a much smaller amount.

The Transbay Tubes are designed to keep water out. They've actually got a way of closing themselves off. The Berkeley Hills tunnels are designed to withstand earthquakes. Safety has been engineered into the system.

A property is obliged to maintain lighting systems as a crime deterrent. Say it can be shown that a portion of the station became dark because BART didn't replace the light for an unreasonably long time. If a mugging occurs in a darkened area, the property owner can face liability.

Maybe (with 20/20 hindsight) "adequate" lighting didn't have to be provided in the first place, but if it's there, it has to be maintained. Also, if there have been crimes nearby, sometimes property owners have been liable for not reacting to criminal activity by providing better lighting.

BART is a third party in this instance between the injured party and the rescuing fire department. As third party, BART took specific steps that prevented a timely call to the fire department, in my hypothetical. Your hypothetical is entirely different.

Uh, so why do any cell phone calls go to the "above ground" cellular 911 call center under any circumstances? You're making an unrelated argument about the ineffectiveness of cellular 911 in this cirucmstance. That makes some sense (perhaps BART should operate its own cellular 911 service) but still isn't applicable given that the shut off wasn't due to an ongoing emergency but an anticipated but undefined situation. If a fight broke out or a passenger was inadvertently injured by a protester, there isn't necessarily any BART personnel to witness it. There probably are no pay phones. There may be telephones in the station and tunnel to reach the control center, but generally, these are in locked boxes wherever I've seen them on a transit rail system.

Without cell phone service, no passenger had any ability to reach those other forms of communication.

I'm sure the land owner rented you the garage for storing an automobile and not for any other purpose. He didn't rent it to you for any number of scenarios in which you've proposed illegal; after all, inadequate storage of a significant amount of gasoline is illegal.

That sure doesn't contradict my hypothetical.

Great! I think there should be pay phones provided for emergency communication service. I've been damned on this newsgroup for the suggestion. Too often, a cell phone may be all that's readily available, so it's absurd to turn service off where it's already being provisioned.

FALSE TO FACT.

FALSE TO FACT.

To be precise, I belive, with a bunch of case-law to back the point, that they have no _duty_ to provide resources to the public for that purpose, and that, therefore, they cannot be held liable for 'failure to do so',

*regardless* of why they did not do so.

You sir, "don't know what you don't know".

There is an -ancient- Middle Eastern proverb about: "those who knoweth not, and knoweth not that they knoweth not"

After this reply, I'm going to follow that ancient wisdom.

I see, you are merely _speculating_ as to why the shutdown was done, and arguing against your self-generated strawman.

Why? the circumstances are *exactly* the same.

*entirely* relevant to the situation the OP raised. You know, people _are_ allowed to discuss more than one example in a single posting.

FALSE TO FACT.

In the abstract, that is true. *UNLESS* there are _contractual_terms_ in the lease/rental agreement that _do_ allow such restriction.

The carrier contracts with BART *HAD* such a clause, according to published reports.

Again, "so what?" applies.

BART is not providing any service _to_ the customer, there is no _contract_ between BART ant the cell user. The cell customer has no 'standing' to sue BART over non-performance of cellular service.

1

I say again, "you don't know what you don't know", and what you _think_ you know is incorrect.

Legally, to be a 'common carrier', you must: 1) be offering a governmentally regulated service, 2) be subject to governmental regulation of the _rates_charged_ for those services. 3) if the government so mandates, have a public schedule of rates on file with the regulatory agency. 4) have minimum and maximum rates (often the same) for each specific service which are subject to government approval and regulation.

Until relatively recently you were _not_ a common carrier *unless* you had a tariff schedule on file with the regulating agency. Certain, but not all, regulatory agencies have waived -- at least 'for now' -- the requirement for tariff filings. If they were to re-instate it -- as _is_ still legally permissible -- any business which wanted to assert 'common carrier' status and the protections thereof *would* have to comply, or lose said status.

If you are not offering service "for a fee", then one of the critical components of a _contract_ is missing -- and *either* side can terminate their participation -- with or _without_ notice, at *any* time, for *ANY* reason, -without- any recourse available to the other party.

If BART only provides the 'antenna', and "somebody else" owns/operates the transmitter(s), BART is _not_ a "carrier", common, or otherwise.

To steal from Disney: "Imagineering" -- where you imagine a causation and argue a fictitious reason for that causation.

The _facts_ are that the various actual 'common carriers' -- Sprint, Nextel, AT&T, etc. -- are not, using *only* their own equipment and antennas, able to provide service in all locations. This is expressly and specifically acknowledged in (a) the terms of their government-issued licenses, and (b) the terms of their contract(s) with their customers.

BART provides -- under a contract with *some* (but not all) of the 'common carriers' physical facilities (the in-tunnel antennas) that allows the service offered by those select common carriers *to*the*common*carrier's*

*customers* to function in the tunnels.`

BART has _no_ 'duty' to *anyone* to maintain that -- or, for that matter,

*any* -- functionality 'in perpetuity'. They _can_ decide to stop offering

-anything-, at any time, for any reason (or without a published reason), =unless= they have a contractual commitment to provide such service through some date.

BART's *contract* with the common carriers _does_ allow them to shut off the in-tunnel antenna system. BART acted within the terms of their contracts.

This was _not_ an un-Constitutional restriction on 'free speech'. It was, at the most, a restriction on the "time, place, and manner" of speech. Such restrictions have been challenged in the past, and the Constitutionality of such restrictions has been _upheld_ by the U.S. Supreme Court.

Given that it _is_ "lawful" for them to do so, no rational court would find liability for a 'legal and proper' action taken by a property owner.

And these types of arrangements are not just limited to subway systems - they exist in many different places. For example, the Univeristy of Phoenix Stadium (Phoenix Cardinals). The cell providers terminate about a mile away from the parking lot. The stadium brings the signals into the property and distributes the signals on common antennas spread around the facility.

Could they kill cell access in an emergency or at management discretion? You better believe it.

And these types of arrangements are not just limited to subway systems - they exist in many different places. For example, the Univeristy of Phoenix Stadium (Phoenix Cardinals). The cell providers terminate about a mile away from the parking lot. The stadium brings the signals into the property and distributes the signals on common antennas spread around the facility.

Could they kill cell access in an emergency or at management discretion? You better believe it.

And these types of arrangements are not just limited to subway systems - they exist in many different places. For example, the Univeristy of Phoenix Stadium (Phoenix Cardinals). The cell providers terminate about a mile away from the parking lot. The stadium brings the signals into the property and distributes the signals on common antennas spread around the facility.

Could they kill cell access in an emergency or at management discretion? You better believe it.

Robert Bonomi wrote: :In article , :Adam H. Kerman wrote: :>Robert Bonomi wrote: :>>Adam H. Kerman wrote: :>

:>>>Communication was shut off due to perception of the possibility of :>>>harm to BART, likely with more concern for public relations than the :>>>possibility of damage to property. Communication wasn't shut off because :>>>actual property damage was occuring. :>

:>>>So, no, they weren't trying to punish a minority by inconveniencing :>>>every cell phone user. They were scared based on incidents in London and :>>>other cities. :>

:>>>This is prior restraint. :>

:>>FALSE TO FACT. :>

:>>'Prior restraint' is a restriction on -what- you can say, not _how_ you :>>can say it. ("Prior restraint" is a 'term of legal art' and has a very :>>specific meaning.) :>

:>Fine. So tell us the correct term. :>

:To steal from Disney: "Imagineering" -- where you imagine a causation and :argue a fictitious reason for that causation.

:The _facts_ are that the various actual 'common carriers' -- Sprint, Nextel, :AT&T, etc. -- are not, using *only* their own equipment and antennas, able :to provide service in all locations. This is expressly and specifically :acknowledged in (a) the terms of their government-issued licenses, and :(b) the terms of their contract(s) with their customers.

:BART provides -- under a contract with *some* (but not all) of the 'common :carriers' physical facilities (the in-tunnel antennas) that allows the :service offered by those select common carriers *to*the*common*carrier's* :*customers* to function in the tunnels.`

:BART has _no_ 'duty' to *anyone* to maintain that -- or, for that matter, :*any* -- functionality 'in perpetuity'. They _can_ decide to stop offering :-anything-, at any time, for any reason (or without a published reason), :=unless= they have a contractual commitment to provide such service through :some date.

:BART's *contract* with the common carriers _does_ allow them to shut off :the in-tunnel antenna system. BART acted within the terms of their :contracts.

The contract is not the only controlling document. The terms of the licenses that the carriers operate on matter; they're not allowed, by regulation, which overrides the contract, to cede authority over their licensed spectrum to third parties. So BART don't get to shut off servcie whenever they feel like it. There needs to be a real pressing reason to do so. It's not clear that existed; if it didn't, BART's actions were illegal. It's not clear there's any recourse against them, though.

A threat of having trains, or passengers getting on/off, deliberately blocked by a mob is a good enough reason. Not only to shut down cell service, but for mass arrests.

John David Galt wrote: :David Scheidt wrote: :> The contract is not the only controlling document. The terms of the :> licenses that the carriers operate on matter; they're not allowed, by :> regulation, which overrides the contract, to cede authority over their :> licensed spectrum to third parties. So BART don't get to shut off :> servcie whenever they feel like it. There needs to be a real pressing :> reason to do so. It's not clear that existed; if it didn't, BART's :> actions were illegal. It's not clear there's any recourse against :> them, though.

:A threat of having trains, or passengers getting on/off, deliberately :blocked by a mob is a good enough reason. Not only to shut down cell :service, but for mass arrests.

That's not what the courts and Congress have said for the last 75 years. Common carriers don't get to decide who they provide service to based on the claims of cops. End of Story. There is a procedure protecting the due process rights of the people who are having their service disconnected, and it's not 'some cop, claims, on evidence that may, or may not have been made up, that some nameless person might, or might not, cause some bad thing to happen.'. That's the standard BART used.