As American as Apple Pie, or, Who's on the Right Side of History in the First Amendment Debate, (and did I mention #Anonymous?)

Today, September 27th, 2011, I want to use this blog post to address a question raised by  @pixplz who asked in a tweet sent on 26 September, "Maybe now would be a good time to look back at what #OpBART accomplished, and what issues remain unresolved." If the title of this post is any indication, it might lead you to believe you were going to read about something "as American as Apple Pie," and that's true. That's the case. But these days, the people who are the real "Captain Americas" in my book, and who are making and baking the good ol' American Apple Pie, are in fact those who are associated with #OpBART and #Anonymous, because they have taken a critical stand in favor of, and not against, our 1st Amendment.

So, what has #OpBART accomplished, if anything?

1) Its protests (seven of them, so far, counting #OpBART-7 ~ Ride the Streets http://opbartsf.tumblr.com/post/10687247060/every-monday-5pm-civic-center-bart-station | http://bit.ly/phN4yX ) have resulted, without the shadow of a doubt, in increased public awareness about the issues surrounding Oscar Grant and BART Police methods, and have resulted, by and large, in general public dismay regarding BART's response (via shutdowns of wifi and cellular service nodes) to public protests.

2) It has challenged the unconstitutional notion adopted by BART that people cannot express themselves freely wherever they please.

3) It has presented an opportunity for public interest groups and individuals to submit to the Federal Communications Commission (FCC) not only public comment on these issues, but an Emergency Petition for Declaratory Ruling.  An Emergency Petition was sent to the Commission by @publicknowledge with the following parties also joining as petitioners: @CenDemTech @mediajustice @EFF @mediaaccess @NewAmericaOTI @NHMC @mmtconline and the Broadband Institute [ at @santaclaralaw ] -- and the text of the petition that these public interest groups joined together on is available online at http://www.publicknowledge.org/files/docs/publicinterestpetitionFCCBART.pdf

Additionally, another Emergency Petition specifically having to do with the cellular service shutdowns conducted by BART on August 11, 2011, was submitted by me to the FCC, and is available for download as a PDF at http://bit.ly/nkBTcV - which contains arguments based on the Communications Act of 1934, Telecommunications Act of 1996, and rights of the person based on our rights to speech, travel, and case law pertaining to the same. It also gives a nod to #Anonymous and the role of dissent at the tail end of the Petition, and requests as part of the Petition for Declaratory Ruling that the FCC designate specific types of training be mandated for BART personnel.  (To the best of my knowledge, my Petition is the only one that specifically requests the FCC take the step of designating mandated training for BART personnel.)

4) Because my Petition, at http://bit.ly/nkBTcV has not yet received a docket number and is not yet published at the FCC website (to enable public review and comment) despite the fact that it was received by the FCC on September 9, 2011, and neither is the Petition that was submitted by Public Knowledge, and because the FCC has suggested, as I have inquired about what my docket number is (or when it will be given to me) that I speak to the Chief of Public Safety and Homeland Security, I have decided to take advantage of the strengths of my Congressman and his staff and use their constituent casework services.  Some good news today I received from his office, which is in receipt of my petition as well as a copy of this http://bit.ly/njWwpd (the results of a CPRA request from Christopher Soghoian and Jacob Appelbaum) - is that if the FCC does not act to provide a docket number on or before thirty days have passed from the FCC's receipt of my Petition (by Monday, October 10), then the Congressman's office will be contacting the FCC directly to inquire and request that this be done, and I will be contacted when the docket is provided to the Congressman's office.   

Only when this Petition is docketed will the FCC have to consider public comment associated with it, and will the FCC have to render a decision that takes into account not only the Petition but any public comment submitted online through the site where this customarily occurs at http://fjallfoss.fcc.gov/ecfs/hotdocket/list.

5) #OpBART has, to some extent, placed pressure on the legislative establishment, which held a hearing today, Sept. 27, 2011 on BART Police Oversight in the California State Capitol, as special hearing of the Assembly Public Safety Committee.  It is clear from the remarks of the legislators at the Committee that there are some changes that they desire to see at BART:  For example:

     a) Crisis Intervention Training - Most BART officers have not been receiving it, and both legislators and BART police agree that it is needed for the bulk of the BART officers.  See http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/27/BA3M1LADBL.DTL

     b) Board of Directors and BART Governance - The BART Board is "negligent," according to Chair of the Assembly Public Safety Committee Tom Ammiano.

     c) Cell Phone Service Cuts by BART Police -  According to Assemblymember Nancy Skinner, "I think the decision to cut off the cell phones (...) indicated to me there is not good understanding by BART and the deparment management about how to deal with these crowds and protests."  It is clear that the concerns of cutting off the cell phones and the issue of whether or not this will become a precedent are on the minds of the Assemblymembers and not just on the minds of protesters and some members of the public.

See http://www.baycitizen.org/blogs/pulse-of-the-bay/bart-police-state-hearing/

I am aware of some Anons who attended and at least one made a blog post of the experience that he/she had while at the Assembly Public Safety Committee.

6) I believe this is in no small part due to the influence of #OpBART.  Recently, something that could not make it as breaking news in any mainstream media San Francisco newspaper (nor on TV in San Francisco or anywhere else as far as I could tell), broke in Bloomberg, in a story here, http://www.bloomberg.com/news/2011-09-26/phone-web-clampdowns-in-crises-are-intolerable-susan-crawford.html thanks to the efforts of Susan Crawford

@scrawford and George Anders @GeorgeAnders who are to be commended for their work.  It is not easy to take something like an FCC petition and turn it into a really interesting story for public consumption, while also suggesting a proper course of action, and they have done just that.

7) And, finally, it would be wrong for me not to mention that #OccupyFDSF / #OccupySF is growing, a movement which has been periodically joined with #OpBART, and which has found itself at times participating in or near Civic Center or other BART stations. The FCC petition(s) and other legal measures will continue to reinforce the rights of people to exercise means of free speech and communication without threat or compromise of the systems they use for the same. The twitter accounts for these two movements, which I recommend you follow, are at @OpBART and @OccupyFDSF and also @OccupySF (appears to be a branch movement similar to #OccupyFDSF) which is at Civic Center (location similar to #OpBART's standard practice) at the time of this post publication to the web.

8) This is not going away!  The public is waking up to what is going on.  If one type of protest diminishes, another effort occurs in another venue, and the struggle transforms and continues.  There is no question that there are issues unresolved relating to BART, including the lack of training for BART personnel generally on how to handle difficult encounters, training on how to properly respond to protest situations, and there remains unresolved the issue of the regulatory response from the FCC and how it will rule on the matter of the Petitions submitted to it, but if anything this whole matter has cast into stark focus who we are as Americans and whether we are willing to be cast down a dark hole into submission and the endless creep of relinquishment of our rights until there is nothing left, or whether we are willing to take a stand and make a change to make something right.  There are those among us who have chosen the latter.  And we will be on the right side of history.

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 http://bit.ly/nkBTcV), 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: @CenDemTech @mediajustice @EFF @mediaaccess @NewAmericaOTI @NHMC @mmtconline and the Broadband Institute [ at @santaclaralaw ] -- and the text of the petition that these public interest groups joined together on is available online at http://www.publicknowledge.org/files/docs/publicinterestpetitionFCCBART.pdf

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 http://bit.ly/nkBTcV 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 http://bit.ly/nkBTcV -- 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 http://www.publicknowledge.org/files/docs/publicinterestpetitionFCCBART.pdf -- 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

                  uncertainty.

                 (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 http://www.access.gpo.gov/nara/cfr/waisidx_10/47cfr1_10.html

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  http://fjallfoss.fcc.gov/ecfs/hotdocket/list -- 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.