Interesting Point

Harold Feld (Full disclosure, he’s a friend, we were at his son’s Bar Mitzvah reception) explains why BART shutting down its cellular service in its stations to prevent a flash protest is more than a 1st amendment issue, but that it is a flagrant violation of the law:

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.


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.


Like the Attorney General in Brophy, the BART is an instrumentality of the State of California. As in Brophy, the mere allegation that someone (or some group of someones) may use their phone for illegal purposes most emphatically does not confer authority to unilaterally shut off access to the phone network – even if that phone network is physically located within the BART. Why? Because the BART is an instrumentality of the state of California and is geographically in California. There is no BARTistahn, and the Directors do not get to decide this on their own.


We will savor the irony that the most eloquent annunciation of the right of individuals to access phone service without interference from law enforcement (absent due process) takes us from Earl Warren to Eugene “Bull” Connor.

(emphasis original)

And yes, part of the case law here does involve “Bull” Connor, and BART is taking his side in this.

It’s a good read, and clear and informative to the layman.

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