I gave a quick e-mail interview to Fast Company, about BART’s decision to cut off mobile communications to avoid a social media-assisted protest. Here is the quotation:
Another expert on telecommunications law, Jerry Kang of the UCLA Law School, seconded the fact that BART’s decision took the transit provider into a legal gray area. According to Kang, “It is illegal for persons to ‘willfully or maliciously interfere with or cause interference to any radio communications.’ […] But there is a difference between affirmatively jamming a signal sent by a carrier and deciding not to provide, repeat, or boost that carrier’s signal. Mobile providers have been granted licenses to use spectrum frequencies by the FCC. In addition to the spectrum, they need to put up antennas. Usually, they contract with private parties to site these antennas. Due to basic physics, the above-ground signals don’t penetrate underground. Therefore, the mobile providers must have created some agreement with BART to site some antennas (repeaters) underground.”
Kang notes that BART’s agreements and contracts with mobile providers will also influence the legality of the case. At time of writing, it is also unclear whether BART had agreements with individual providers that would allow them to shut off service in extreme circumstances. Messages seeking comment left by Fast Company for BART’s community relations department were not returned.
Here some other information that might be useful in understanding the situation that did not make it into the article:
The terms of that contract are critical, including the specifics about who owns what and what’s being leased. Assuming that the equipment is owned by the carriers, then there must be some site leasing arrangement. On the one hand, if BART was given some discretion to cut the signal, for example, for safety reasons, then the mobile providers would have no contract claim against BART. On the other hand, if BART reserved no discretion, there might be a plausible legal claim. Think about a guy who allows a cell tower to be built on top of his building. That lease doesn’t give him the right to pull the plug on the tower willy-nilly.
There might be two issues that interest your readers: public forum doctrine and net neutrality. First, the reason why BART is emphasizing in its official statement that “[n]o person shall conduct or participate in assemblies or demonstrations … on the paid areas of BART” is to avoid any finding that the BART areas and/or communications service enabled by BART’s repeaters constitute a “public forum”. If it’s not a public forum, then BART can take advantage of the fact that it owns the property. As the owner, it can reasonably regulate behavior, including speech, by folks on that property. By contrast, if it is a public forum, then BART gets no leverage from the property ownership and must confront harder First Amendment scrutiny.
Second, think about net neutrality, which asks whether Internet providers can pick and choose what content is carried or must they deliver all lawful content without discrimination? Most readers probably don’t appreciate that unless all their voice call is common carriage, their data access is not. Unless the FCC’s recent open Internet rules stick, there would be nothing necessarily unlawful with the mobile carriers pulling the plug on texts and messages simply because they disagree with their political message. If folks are outraged at BART doing this, shouldn’t they also be concerned about granting that power to the mobile carriers?