The Federal Communications Commission (FCC) has issued a Public Notice requesting comment on issues relating to intentional interruptions of commercial wireless radio service by government authorities for the purpose of ensuring public safety. Comments are due April 30, 2012, with reply comments due May 30, 2012. The FCC explained that the comments will inform its deliberations regarding whether and if so, what legal or policy guidance may be appropriate to provide to state and local governments and wireless carriers.
The FCC decided to initiate a dialogue to examine the legal and policy questions surrounding wireless service interruptions because it noted that state and local government agencies have been grappling with whether and when it is permissible to temporarily shut down cell phone service in the name of public safety. For example, the FCC noted a recent incident where a local government agency temporarily interrupted cell phone service on portions of its mass transit system during public protests in order to prevent the protesters from coordinating their activities via cell phones. The local government agency had concluded that the protests constituted a serious and imminent threat to the safety of its passengers and personnel and the safe operation of the transit system. The FCC also cited concerns raised by state and local law enforcement personnel that cell phones could be used to trigger the detonation of an explosive device or to organize the activities of a violent flash mob.
At the same time, however, the FCC explained that it is committed to preserving the availability and openness of communications networks. It stated that intentional interruptions of wireless service by governments, however brief or localized, raise significant concerns and implicate substantial legal and policy questions. The FCC expressed concern that there has been insufficient discussion, analysis, and consideration of these legal and policy questions. Thus, it has requested comment on the legal constraints and policy considerations that bear on situations where a wireless carrier interrupts its own service in an area for a limited period of time at the request of a government actor or where a wireless carrier has its services interrupted by a government actor that exercises lawful control over network facilities.
Among other things, the FCC has sought comment on the following:
What are examples of past practices and precedents of public agencies intentionally interrupting wireless service or considering doing so for public safety reasons? Are there examples of wireless networks actually being used to harm public safety?
Under what circumstances, if any, is it appropriate for a public agency to interrupt wireless service and how effective would an interruption of wireless service be in protecting public safety?
What public institutions, agencies, or officials have or should have the authority to request an interruption of wireless service and what process should they use?
What are the risks of interruption of wireless service, including how would the activities of first responders and other emergency personnel be affected, what are the potential economic consequences, what steps could be taken to minimize the risks, should public agencies be required to provide notice of planned service interruptions, are there less intrusive ways of protecting public safety, and what are the liability issues for wireless carriers?
Can wireless service providers implement interruptions while still ensuring that wireless 911 calls and other public safety communications are not interrupted? What are the different methods for interrupting wireless service?
What are the laws or regulations that affect the ability of public agencies to interrupt wireless service? The FCC seeks comment on what sources of legal authority it has regarding shutdowns of wireless service and whether it can preempt state and local laws permitting or prohibiting wireless service interruptions. The FCC also requests comment on what protections do the First Amendment, due process rights, or other constitutional concerns provide for users of wireless service and commercial wireless carriers?