A special meeting of BART's Board of Directors yesterday (Wed/25) was the first step in crafting a policy outlining the circumstances under which BART staff would be authorized to cut off cell phone service in its train stations. The resulting policy will be the first in the nation, and is likely to act as a model for other government agencies to address the issue.
While BART's top management defended the suspension of cell phone service to disrupt a protest planned for August 11, BART's board was divided over whether the suspension of cell service to prevent a protest was justified and what would constitute a justification for cutting cell service in the future.
“This group was encouraging, promoting and inciting illegal behavior on our platform,” BART police Chief Kenton Rainey reminded the board.
“Well, there is illegal activity every day at BART. The response does not feel proportional enough for justification,” responded BART director Tom Radulovich,
BART director Robert Raburn echoed Radulovich's concerns. “Neither speculation about a protest, nor mere disruption of train service, nor other illegal activity by itself constitutes a risk to passenger safety that would warrant interrupting cell service. We must guard First Amendment freedom of speech, and this will become a landmark case,” said Raburn.
Staff and union representatives stressed that public safety was always BART's top concern.
Officials from BART's three unions generally agreed that the shutting of cell phone service was inappropriate, but admonished protesters for conducting protests on the platforms where they say there is a safety risk due to crowding.
“I applaud the individuals, the union supports the individuals who organize, for I understand organizing. I understand protesting,” said Austin Thomas, who represents BART employees from SEIU Local 1021. “But, I would like to see that this forum be the forum to bring your protest, to have your grievances redressed here.”
“The bottom line for BART is that downtown San Francisco at 5 pm is the maximum stress point at the maximum stress time. It's all about public safety and keeping the trains moving,” stressed BART Assistant General Manager of Operations Paul Oversier.
“We keep going around with these safety issues, but do not be confused: We do not have to have one or the other,” urged director Lynette Sweet, who referenced the 1955 case Pike vs Southern Bell Telegraph.
“In this case, a gentleman by the name of Bull Connors ordered Southern Bell to remove the telephone of one Lewis Pike, described by Mr. Connors as a negro of questionable character who is known to be using his phone for unspecified illegal purpose. That is not where we as BART want to go. We don't want to tell people, or signify, or specify, that you can't talk, that you don't have the ability to talk.”
But BART board Vice President John McPartland took a harder stance. saying the action was justified, and BART need to post signs informing the public of possible disruptions in cell service due to safety issues.
“This is the beginning of a review from a national perspective on this issue. I, for one, think we should maintain our ability to control cell service until we have it looked at from a legislative perspective.” said McPartland.
“Not all free speech is protected. There are some very narrow exceptions, and I believed this to be one of them,” Oversier insisted.
“If we are ever going to shut off cell phone service, ever, it should be for the most valid reasons that I equate with 9-11 [terrorist attack] level. Not the protests that we thought were going to happen on August 11th. We can't do that,” cautioned Sweet, who wondered out loud if BART couldn't just apologize for making a mistake and move on.
Members of the public present for the meeting remained dubious about BART creating policy concerning cell phone disruption at all.
Speaking on behalf of protest group No Justice No BART, an activist identifying himself only as Christof told the board, “We are not asking you to fix anything. We just simply don't trust you to run a police force at all. We are not asking you to improve your free speech policy, we already have a free speech policy – it's called the constitution.”
He expressed doubts as to whether BART should be trusted with the power to cut cell phone service. “What is the first thing that your police officers did on the Fruitvale platform after they shot Oscar Grant in the back? They tried to confiscate video footage taken by passengers,” Christof accused.
That footage from the New Years Eve shooting of Grant by officer Johannes Mehserle was the beginning of BART's problems with anti-police brutality protesters.
Other speakers from the public had similar concerns about BART overreaching its authority.
“The proper place to present the arguments we have just heard is not to this board, but in a court room before a judge considering a motion or injunction. Instead of using those existing legal mechanisms, you have taken matters into your own hands as vigilantes,” said Edward Hasbrook representing the Identity Project.
BART officials expect the new policy will be crafted and voted on within a month. They say the new policy will be vetted through BART attorneys, the ACLU, and and BART's civilian advisory committee. But they cautioned that BART could not envision every emergency that would warrant shutting off of cellular service as they craft their forthcoming policy, so the policy would include some flexibility at the discretion of BART management.
Both the California Public Utilities Commission and the Federal Communications Commission, who regulate cell phone providers, are already examining the legality of BART's actions. As an afterthought, at the close of the meeting, Sweet urged the board to consult with those agencies over the policy before it is implemented.
BART has only provided cell service in its stations for a short time. While BART is under no legal obligation to provide phone service, once they began providing service they fall under the jurisdiction of the FCC, which regulates cell service nationally.
Speaking in Denver to CNET, FCC Commissioner Robert McDowell said the matter was still under investigation.
"What the heck happened, what precedent does it set, were there any laws that were broken?" McDowell questioned. "Let's continue with the investigation. We'll draw conclusions after we have all the facts."