Big decisions are rarely clear-cut

This July issue of Urgent Communications explores the shutdown by the San Francisco Bay Area Rapid Transit district, or BART, of cellular service on the system to prevent what agency officials believed was a dangerous public-safety situation. Most of the articles and vitriol that I've seen on this issue have been much like today's politics — all black and white, with no shades of grey permitted. I take a more nuanced view, simply because decisions rarely are black and white.

Numerous people have stated that this is a First Amendment issue. I don't agree. While, the cellular companies are common carriers, the ability to use a cell phone in every circumstance is not guaranteed by the First Amendment.

However, once a common carrier chooses to provide service in a particular geographic area, there perhaps is an ongoing obligation to continue to provide that service — at least until it provides its customers notice that the service won't be available for a certain period. That's because the carrier has established in the minds of its customers an expectation of service.

This is relevant in the San Francisco Bay case because it wasn't the cellular companies that shut down accessibility to service in that particular area — it was BART. However, the transit agency certainly is under no obligation to provide infrastructure on its platforms and in its tunnels — that's a customer-service decision. This is what I mean by nuanced. One first must go through the hoops of service obligations before one can reach black-and-white conclusions — if then.

A question that should be considered concerns whether a carrier has an obligation to provide continuous service at a specific location. If so, does that obligation extend to providing the actual ability for the call to go through, or just to providing a usable signal level? I can relate my experience at Penn State University during last year's East Coast earthquake. I was with about 15 college freshmen eating lunch. When it happened, we all had signals from all of the major carriers — but not a single call went through. Was that a First Amendment right of mine that was being trampled? I don't think so.

Let's now consider what might have happened if service had not been shut down by the catastrophe. Once the ground started to shake, everyone would have grabbed their cell phones, and there likely wouldn't have been usable service for many, if not most, of the people there. Thus, there was no guarantee that the 911 call would have gone through.

But let's say that I'm wrong about that, and about whether there is a First Amendment issue at play here. Even if there was, we must remember that such rights are not absolute. For example, there is no right to falsely yell "fire" in a crowded theater (a law school moot-court judge reminded me of the "falsely" part).

While prior restraints on speech have a very high hurdle to clear in order to pass legal muster, public safety certainly is one of the items where prior restraint can and should be considered. Therefore, one must examine the context of this incident to determine whether the shutdown was a reasonable exercise of BART's public-safety authority. If this simply was an attempt to inhibit bad PR, that's not a good thing. However, if there were legitimate public-safety concerns, perhaps BART is to be applauded for being proactive.

Given that these positions are public appointments, you get to decide by voting for (or against) the people who appointed these folks. This is an election year — so vote early and vote often.

Alan Tilles is counsel to numerous entities in the private radio and Internet industries. He is a partner in the law firm of Shulman Rogers Gandal Pordy & Ecker and can be reached at [email protected].

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