Revolutionary Goal

Tuesday, September 6, 2011

An Explainer for the BART 'Emergency Petition'

Today, September 6th, 2011, I sent something in the mail called an Emergency Petition to the Federal Communications Commission, relating to BART. Having made the text of this petition public (you can see it at ), I've already received some questions: 1) Have you informed others how to do this, too?  2) Is there any reporting on what it means? 3) Who is pushing it? 4) What can it do (what's the point of it)?  I thought I would dedicate this blog post to answering these, and perhaps some other questions in a down-to-earth explainer, without any of the "legalese" that was in the Emergency Petition itself.

Before I get into answering the questions that have been asked, I should point out that, at least one other Emergency Petition of this sort was previously sent to the Federal Communications Commission relating to the BART controversy of August 11, 2011.  The Emergency Petition was sent to the Commission by @publicknowledge with the following parties also joining as petitioners:  and the Broadband Institute [ at  ] -- and the text of the petition that these public interest groups joined together on is available online at

Now I can get on to answering the questions: 
1) Have you informed others how to do this, too?
No, not yet.  It's been quite a task just to get to the point of getting this Emergency Petition out the door.  However, I had help.  One, all the ideas and legal references I would never have come across were it not for other people, either for their inspiration or for information that literally landed in my lap as it flew from them to me or in front of my eyes after someone else had put the basic thoughts together.  As one example, @zennie62 was key in alerting me to the existence of the Communications Act of 1934, which I may never have been aware of had I not seen his information and very early discussion of that in relationship to BART's actions on August 11. 
Another thing is that although the process for launching an emergency petition (or for commenting on an existing one) is actually very simple, I don't think I ever would have been able to prepare myself to do either were it not for an incredible federal employee at the Federal Communications Commission, who shall remain unnamed, (perhaps, I may say, who shall remain #Anonymous), and who brought me patiently through the process of understanding what to do, and in what order to do it, and what online resource(s) I had at my disposal from the federal government as well should I choose to utilize them.
At the end of this post I'll describe how to create an Emergency Petition as well as how to find existing ones and how to comment on them.

2) Is there any reporting on what it means?
Not that I am aware of, not by mainstream media, that is.  As of right now, my tweet of the link to the text of the petition (to a page where people can download the full PDF of the petition) has been retweeted quite a bit.  I think that's some good reporting and exposure.  In terms of this blog, I can report here that what the legalese that you see in the Emergency Petition at  actually means is that -- well, I'll just repeat some of the closing words of the Petition, "What does all this mean? It means BART can’t do what it did on August 11, 2011. And neither can, nor should anyone else here in the U.S. (Nor for that matter should anyone do the same thing elsewhere.) It also means, that despite whatever misgivings many in the United States have about #Anonymous, that many of them have taken the right stance in being present, in a nonviolent way to protest what BART has done. The history of the United States and where we are is arguably built on a certain level of dissent."

3) Who is pushing it?
With respect to the Emergency Petition at  -- the one that emphasizes free speech and rights of the person, and makes reference to #Anonymous at the end -- I am "pushing it." There is no-one else behind it.  Anyone who would like to help support the effort in any way is welcome to contact me.

With respect to the Emergency Petition at -- the people pushing it are a group of public interest groups spearheaded by @publicknowledge as previously mentioned.

4) What can it do?
That's the question, isn't it?  What can it do?  What's the point?  Well, unless you feel like taking #BART to court for what happened on August 11, 2011 (or subsequently, for any policy or action it takes which would ultimately recreate the conditions of August 11, 2011 or create a precedent elsewhere in which the same thing could happen) in the United States District Court, Northern District of California [San Francisco venue, San Francisco / Oakland interdistrict assignment] over violations of the Communications Act of 1934, as amended, then you will have to rely upon the Federal Communications Commission for some level of review.  Absent a condition in which specific regulation exists, and without a specific request for the creation of a type of regulation, a type of request can be made to the Federal Communications Commission (FCC) for what is called a "Declaratory Ruling."  According to FCC rules, this can be done as follows:
                 § 1.2 Declaratory rulings.
                 The Commission may, in accordance
                  with section 5(d) of the Administrative
                  Procedure Act, on motion or on its own
                  motion issue a declaratory ruling terminating
                  a controversy or removing
                 (5 U.S.C. 554)

One would certainly hope that the FCC will remove any controversy or uncertainty as to whether BART is allowed to perform the kind of actions that they did on August 11, 2011.  It is my view that the FCC will ultimately rule favorably towards the public, which is to say in favor of users of cellular devices who do not want to have their ability to use those devices suddenly yanked at the discretion of a transit agency.  If I am wrong, then the FCC and BART will likely find themselves in a court battle with forces far more powerful than I.

  There is no required format for submitting the petition for declaratory ruling, however, it has been made known to me that if you are submitting a petition to the FCC, you must provide your name, address, telephone number, and signature on one copy (that will be your "original"), make four copies of the "original," and mail (by U.S. Postal Service) these five documents in a single envelope to:
              Office of the Secretary
              Federal Communications Commission
              445 12th St. SW
              Washington, D.C. 20554

Of course, you will need to comply with any requirements of the FCC rules and the Administrative Procedure Act, etc.  Get started on your reading by looking at

Now, I didn't ask this question, you did.  So if you are falling asleep reading the answer, don't blame me.  There's one more thing, though.  If you want to comment on any existing petitions for declaratory rulings, keep an eye out at   -- this is FCC's list of items that are up on its docket and are now ready for public comment -- and especially keep an eye out for any related to BART.  (Once submitted, it takes time for submitted petitions to get a docket number, so you may not see any BART related items right now.)  The little "i" next to each number gives you links to more information and a page that has document links that gives clarification about what each item is really about.  It may be worth your while to just keep a close eye on that page rather than writing up a whole new petition for declaratory ruling; the reason I wrote mine was that there was material that I felt was absent in the first one (spearheaded by @publicknowledge) that I needed to provide in a newer one.  Time will tell if I was right or not.


  1. A staff person, Rodney McDonald from the Wireline Competition Bureau (the Bureau of the FCC that handles discontinuance matters) contacted me - he believes my petition would be handled by Wireless Bureau - recommends calling Wireless Bureau. 202-418-0600. I called the Wireless Bureau today and they seemed unfamiliar with what to do, and referred me to Timothy Peterson, the Chief of Staff at the Public Safety and Homeland Security Bureau. (They gave me his e-mail address, which is publicly available on the FCC website.) I'm not sure why this is necessary since all I want to know is where my petition currently is being processed at the FCC, and what its docket number is, and if it doesn't have a docket number yet, when will that occur. Still contemplating what to do and who to contact next in order to get this information.

  2. I have just remembered that in the past, my Congressman successfully helped me with a federal agency issue by a routine inquiry. I think I will use the same process: fill out the Congressman's constituent casework form, ask that it be sent from his office to the FCC as a formal inquiry regarding the docket number assignment and status of the petition, and wait for the Congressman's staff to provide me with the FCC's answer. I shouldn't have to contact the Chief of Staff of a Federal agency Public Safety and Homeland Security Bureau to get a simple status on where my petition is in the agency's office(s) and process. So I'll be contacting my Congressman tomorrow.

  3. Well, FCC and BART, you've gone and done it. Made me officially mad (in a civil, legal, nonviolent way). Today, my "Emergency Petition" just got elevated to Congressional review. Stay tuned...