Revolutionary Goal

Wednesday, August 24, 2011

#BART Complaint Process, or: The Reality of Necessity of Public Response to Censorship

As those who have been paying attention to California events in recent days have been aware, there have been some significant issues percolating to the surface in terms of issues of travel, censorship, and the ability to freely use digital means of communication.  We have often looked askance at dictatorships in the Middle East or North Africa when we have seen cellular service and internet suddenly drop off or disappear in these countries in response to protests. Yet here at home in the United States, we now are experiencing this very same thing.  And interestingly, it has come to us not from the hand of the federal government, but rather, from unelected officials acting in their capacity as employees of BART (a transportation district brought into being by the State of California), who cut off power to wireless nodes of a cellular network in their fearful anticipation of a protest.  Unfortunately, the actions of the BART employees who are responsible for the censorship have so far gone unpunished by the BART Board and so far have not resulted in penalties from the Federal Communications Commission, although the Federal Communications Commission is investigating the BART action. Without action from the public, BART's actions of censorship soon will become the standard for the rest of the nation, regardless of what the BART Board does.  (It is scheduled to meet today at 9:00am, Kaiser Ctr 20th St Mall 3rd Fl, 344 20th St, Oakland.)

Actions of the BART Board, no matter what they are, will be insufficient to address the dangerous precedent created by BART employees who assumed they had the right, in a way nearly equivalent to judicial power as created and effected by the BART employees, to encroach upon the basic rights of travelers and protesters alike; the actions of the BART employees threaten to criminalize basic patterns of speech and dissent that are protected under our First Amendment, most especially if other organizations and jurisdictions adopt the approach that BART as an organization has so far taken.

It is for this reason that I provide a tool to affected San Franciscans who were in particular in the area of the protests and who either had your travel impacted by the events of August 11, 2011, or had your cell phone service cut as a result of the events of August 11, 2011 (probably between the hours of 4:00 PM and 7:35 PM PST, approximately).  I've provided a document, available at the attached link to this post, and also here that you can use to either file a complaint to the Federal Communications Commission at (you'll have to exclude the document's references to venue and jurisdiction in the District Court, however, in your complaint to the FCC) or alternatively, you can use the document to file suit at the U.S. District Court, Northern District (no small task, but the document does enable you to do so if you wish to dive into an expensive and lengthy lawsuit on your own). Particularly if you had your cell service cut on August 11, 2011 and you were in the BART trains or platforms, your cell service company will have a record of either dropped call or service that you can print out and / or describe and will establish your standing as an affected person.  It is for this reason that page 1 and 7 of the document are left with some blanks:  Page 1 has areas where you must fill in the plaintiff (you) and defendants (BART representatives named in the document, and BART itself), and page 7 has areas that you must fill in with information that you will write yourself to provide further authorship of the document should you wish to take the route of suit.

Some disclosures are in order:  I'm not a lawyer, and I won't pretend to be.  The document you'll find at the link isn't perfect.  However, I've done my best in putting together something I hope you'll find useful.  I've also gotten a bit of review of it from someone who actually is a lawyer in hopes of remedying my general lack of expertise in the area.  Here is what the comments are from the professionals (paraphrased):
- That my 'Claim 1' is flawed because it would be tough to get a claim against BART under 47 U.S.C. 332, §(c)(7)(B)(i)(II)
- That 47 U.S.C. 326 applies just against the Federal Communications Commission (this has to do with my 'Claim 4').
Despite this, I've left the document as it was originally because the whole area is uncharted territory, the question of what is 'modification' under 47 U.S.C. 332 can in my view include many things; increase in power to a wireless node or a decrease in power (from my perspective) constitutes a type of modification (and, unless under prior authorization by the FCC considering we are speaking of a licensed system, as I see it, it would seem to be an illegal modification).  I've seen "modification" being referred to by some only as 'improvement, upgrade, expansion, or replacement of existing wireless facilities' however, 'modification' has a broader meaning that does not only imply improvement, but can also mean, simply, alteration of any kind, without necessarily enhancement of service per se. Additionally, where in 47 U.S.C. 326, it states that "no regulation or condition shall promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication," I look beyond the Commission's role to the involvement of BART in that if its contract with respect to the carriers in the Transbay tubes as approved by the FCC is claimed by BART to allow a modification (cutoff) of service in certain circumstances, then BART is responsible for correcting the violation of the First Amendment that such a contract or condition related claim creates so as to cure any interference with the right of free speech within the meaning of 47 U.S.C. 326.  Perhaps I am being far too creative with my claims and don't have a proper legal mind, but I choose to leave my document's claims as they are.

Although I did not mention it in my document, our California Constitution makes the point quite nicely:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Any person from San Francisco who is not a lawyer wishing to use the document I've created to file suit must first read the Pro Se handbook available via link at  
Any filing San Franciscan will also need to fill out a Civil Cover sheet, available at and consult with the Court Clerk, filing, at minimum, the Civil Cover Sheet and the (completed - see pg. 1 and pg 7 incomplete areas requiring your attention!) document with any required fees, with the Court Clerk.
The Court Clerk is at United States District Court, 450 Golden Gate Avenue, 16th Floor San Francisco, CA 94102 -- 9AM – 3:30PM -- tel. (415) 522-2000.
NOTE:  I totally disclaim any liability from any injury, damage, problem, or general thing of any kind that may result from anyone acting upon the material they are reading in this post.   That being said, in the words of Eisenstadt v. Baird, 405 U.S. 438, The First Amendment protects the opportunity to persuade to action whether that action be unwise or immoral, or whether the speech incites to action."