FCC’s Proposal to Lift Longstanding Ban on In-Flight Cellphone Use Draws Public Outcry

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Your seatbelt is fastened, a book is perched on your lap and you are ready to take off for a relaxing four-hour flight to San Francisco.  You plan to enjoy the flight in comfortable silence by reading a good book for an hour or so, taking a quick nap, and then perhaps watching a movie on your iPad.  Unfortunately, the passenger in the seat next to you has other plans for her time on the flight.  As soon as the plane ascends to a comfortable altitude, she whips out her cellphone to call her dentist.  “My name is Joan Smith and I need to reschedule my appointment on Friday,” she shouts loudly into her cellphone.  She finishes the first call and proceeds to make a second call, and then a third call.  It quickly becomes apparent that Joan intends to spend the next four hours chatting loudly on her cellphone in direct conflict with your plan to relax quietly.  The flight is full and there are no other available seats on the plane.  As your irritation increases, you silently long for the days when cellphone use was prohibited on airplanes.

Recent Technological Advancements Allow for Safe Mobile Communications on Flights

When the Federal Communications Commission (FCC) announced on December 12, 2013 that it initiated a proceeding to consider airplane equipment that would safely allow the use of mobile wireless devices (See In the Matter of Expanding Access to Mobile Wireless Services Onboard Aircraft, WT Docket No. 13-301), many Americans immediately objected, fearing the scenario described above.  The FCC’s proposal seemingly eradicated one of the last places where cellphone conversations are strictly forbidden.  The use of cellphones during flights has been prohibited for more than 20 years due to cellphone interference with cellular networks on the ground.  Recent technological developments, however, now safely allow for mobile services on airplanes.  Specifically, Airborne Access Systems (AAS) have been proven to facilitate airborne mobile broadband access without interfering with terrestrial networks.  AAS connect wireless devices on the aircraft operating on licensed wireless frequencies to a terrestrial network via satellite or air-ground links.  AAS both enables the provision of mobile communication services and the management of services onboard the aircraft.  For example, some AAS provide access to the wireless service by a billed subscription with passengers’ service providers.

Despite popular concern, the FCC’s proposal would not require airlines to install AAS or to provide mobile wireless services to passengers on airplanes.  If airlines choose to provide mobile communications services, including text, data and voice, to passengers on aircrafts, they would be required to install AAS on aircrafts.  Ultimately, the airline would choose which, if any, communications services it will provide to its passengers under the FCC’s proposal.  The airline could potentially allow only text and data services without providing voice communication to passengers.

The Global Advancement of In-Flight Cellphone Services

As the United States considers new regulations for in-flight mobile communication services, Europe, Asia, the Middle East, and other jurisdictions have successfully allowed the use of such services, including voice communication, for more than five years.  Internationally, more than 40 jurisdictions currently utilize AAS to provide airborne mobile communications to passengers.  Airlines increasingly have enhanced their in-flight communications service by providing broadband connectivity on aircrafts.  In support of its proposal, the FCC quoted one study that predicted that approximately 21 percent of airplanes in the world will have wireless connectivity by the end of 2013.  Thus, there is now a concern that the only people in the world who will not be able to receive or make voice calls on planes in the near future are people traveling in the United States.  According to the FCC, its proposal seeks to respond to the growing demand, both nationally and internationally, for in-flight broadband and mobile communication services.  However, in the United States, public opinion weighs heavily against adopting the new proposal.  To date, there have been more than 300 comments posted on the FCC rulemaking website on the proposal and an overwhelming majority of the comments oppose the FCC’s proposal.

The FAA and DOT May Ultimately Uphold a Ban on Voice Calls Even If Technically Feasible

The FCC, however, is not the only agency that will determine whether cellphone conversations will be permissible during flights.  The FCC’s sole role on this issue is to examine the “technical feasibility” of the use of mobile devices in flight.  The Federal Aviation Administration (FAA), which sits within the Department of Transportation (DOT), is responsible for regulations regarding the safety of passengers and crew aboard domestic aircraft.  The AAS is subject to FAA rules.  In response to the public outcry regarding in-flight voice calls, DOT Secretary Anthony Foxx announced on December 12, 2013, that the DOT will begin the process that will look at the possibility of banning in-flight calls.  In a statement, Foxx asserted that it is the DOT’s “role, as part of [its] Aviation Consumer Protection Authority, [] to determine if allowing these calls is fair to consumers.”  See Press Release, Department of Transportation, DOT 104-13, Statement of U.S. Transportation Secretary Anthony Foxx, (Dec. 12, 2013).  As part of the process, the DOT will give the public the opportunity to comment.  Ultimately, it could be several months before either agency issues a final rule on the matter.

Congressional Members Propose a Ban on Voice Calls on Airplanes

Before either agency has the opportunity to adopt a new rule, however, Congress may weigh in on the issue by banning voice calls during flight.  On December 9, 2013, Rep. Bill Shuster (R-Pa.) introduced a bill called “Prohibiting In-Flight Voice Communications on Mobile Wireless Devices Act of 2013” that would prohibit passengers from making cellphone calls during commercial flights.  Similarly, on December 12, 2013, Sens. Lamar Alexander (R-Tenn.) and Dianne Feinstein (D- Calif.) introduced “The Commercial Flight Courtesy Act,” which also would limit mobile device use to texting and email if the FCC issues a rule change.

Various Airlines Weigh In on the Debate

On December 18, 2013, Delta Air Lines CEO Richard Anderson announced that the airline will not allow phone calls during flights even if the FCC lifts the ban.  Southwest Airlines and United Airlines have also announced that they intend to keep the ban on voice calls.  Additionally, flight attendant unions also oppose lifting the ban on the grounds that calls could potentially lead to conflicts between passengers and distract passengers from hearing important safety announcements.

Potential Risks and Liabilities for In-Flight Cellphone Calls

While it may be technologically feasible to have in-flight cellphone calls, allowing phone calls on a confined airplane may pose potential liability risks for airlines.  Passengers, who are forced to endure long flights next to other passengers speaking loudly or in a offensive manner on their cellphones, may commit an act of “air rage” against their fellow passengers or possibly bring an action against the airline for failing to provide them with reasonable comfort during a flight. Airlines have been sued on several occasions by passengers alleging that they were injured by the conduct of a fellow passenger.  For example, in 2005, a passenger sued Delta Airlines because he was seated next to an obese man whose body extended into the plaintiff’s seat.  Shafer v. Delta Airlines, Inc., Civil Case 02CVH00301 (Ashland Municipal Court, Ohio filed Apr. 2, 2002).  The plaintiff alleged that Delta Airlines had breached its contract to provide him with a full seat and reasonable comfort, resulting in his embarrassment, severe discomfort, mental anguish and severe emotional distress.  Airlines also have been sued for alleged sexual assault by passengers against fellow passengers on the grounds that the airline employees failed to protect the injured passenger from the assault.  Recently, a passenger with a severe peanut allergy sued United Airlines on the grounds that the airline had promised to accommodate the woman’s allergy during the flight.  Gleason v. United Airlines, Inc., 2:13-CV-01064 (E.D. Cal. Filed May 30, 2013).  The woman, however, suffered a mid-air allergic reaction when a passenger sitting four rows ahead ate a bag of peanuts that was not provided by the airline.  In each of these cases, the passenger sought to recover from the airline based on the airline’s alleged failure to provide a safe or comfortable environment free of the conduct of a fellow passenger.  If airlines permit voice calls during flights, they may risk exposure to lawsuits brought by unhappy passengers.

Conclusion

As the FCC considers the technological feasibility and safety of mobile communications during flights, other stakeholders are assessing the potential impact of the proposed rule.  DOT will assess whether lifting the ban will be fair to consumers who have become accustomed to quiet flights.  In addition to strong public opinion, Congress also potentially will consider whether the global trend in favor of permitting in-flight voice communications warrants a lift of the ban.  Finally, airlines will need to consider whether permitting in-flight calls will spark incidents of air rage and lawsuits and take effective measures to reduce any potential risks.

Topics:  Cell Phones, FCC, Mobile Devices, Smartphones

Published In: Communications & Media Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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