Advance Notice of Proposed Rulemaking (ANPRM).
CFR Part: "14 CFR Part 251"
RIN Number: "RIN 2105-AE30"
Citation: "79 FR 10049"
Document Number: "Docket No. DOT-OST-2014-0002"
DATES: Comments should be filed by
ADDRESSES: You may file comments identified by the docket number DOT-OST-2014-0002 by any of the following methods:
* Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting comments.
* Mail: Docket Management Facility,
* Hand Delivery or Courier: West Building Ground Floor, Room W12-140,
* Fax: (202) 493-2251
Instructions: You must include the agency name and docket number DOT-OST-2014-0002 or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comment. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
Privacy Act: Anyone is able to search the electronic form of all comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
Docket: For access to the docket to read background documents and comments received, go to http://www.regulations.gov or to the street address listed above. Follow the online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT:
The Department of Transportation (DOT) and the
FCC has responsibility over various technical issues-- e.g., whether cell phones or other mobile devices used during flight would interfere with cellular networks on the ground and should continue to be banned for this reason or whether technological advances have resolved those concerns and
Pursuant to its aviation safety oversight authority in 49 U.S.C. 106(f) and 44701(a),
FOOTNOTE 2 http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2013/InFO13010.pdf. END FOOTNOTE
FOOTNOTE 3 See 14 CFR 91.21, 121.306, 125.204, 135.44. END FOOTNOTE
DOT's Office of the Secretary (OST) has the authority under its aviation consumer protection authority to determine whether permitting voice calls on aircraft is an unfair practice to consumers, pursuant to 49 U.S.C. 41712, or would be so disruptive as to be inconsistent with adequate air transportation, pursuant to 49 U.S.C. 41702. The scope of this ANPRM is to gather information that will help DOT conclude whether or not such determinations might be warranted under the provisions cited above. This ANPRM is not seeking comment on the technical or safety aspects of voice communications, which fall under the regulatory authority of the
FOOTNOTE 4 Expanding Access to Mobile Wireless Services OnBoard Aircraft, Notice of Proposed Rulemaking, WT Docket No. 13-301,
FOOTNOTE 5 Id. at 5 [paragraph] 7. END FOOTNOTE
Regarding other airborne broadband access, in 1990 the
FOOTNOTE 6 Id. at 9 [paragraph] 16. END FOOTNOTE
FOOTNOTE 7 Id. at 10 [paragraph] 17. END FOOTNOTE
FOOTNOTE 8 Id. END FOOTNOTE
FOOTNOTE 9 Id. at 9 [paragraph] 16. END FOOTNOTE
Since the adoption of the
FOOTNOTE 10 The
FOOTNOTE 11 See Press Release,
In light of the technical viability of and increasing public interest in using mobile communication services on aircraft in flight, on
FOOTNOTE 12 FCC Mobile Wireless NPRM at 1 [paragraph] 1. END FOOTNOTE
FOOTNOTE 13 Id. at 11-12 [paragraphs] 23-24. END FOOTNOTE
FOOTNOTE 14 Id. at 11-12 [paragraphs] 23-24. END FOOTNOTE
FOOTNOTE 15 Id. at 15 [paragraph] 31. END FOOTNOTE
The FCC's proposal makes clear that it is not proposing a mandate for airlines to permit any new airborne mobile services; rather, the
FOOTNOTE 16 Id. at 4 [paragraph] 4. END FOOTNOTE
FOOTNOTE 17 As an example, the
As stated above, even if the
We understand that today a number of foreign air carriers allow the use of passenger cellular telephones with on-board cellular telephone base stations (picocells). We solicit comment from these carriers and from passengers who have flown on these carriers regarding their flight experiences. More specifically, to what extent have passengers used their cell phones for voice communications on airplanes that are equipped for cell phone communications? Have the air carriers received passenger comments or complaints related to cell phone voice communications? If so, what comments or complaints have been received? If complaints or issues were reported, did these issues rise to the level in which they would be considered to be an unfair practice to consumers, and/or inconsistent with adequate transportation pursuant to 49 U.S.C. 41712 and 49 U.S.C. 41702? If DOT were to make such a determination (that voice calls are unfair and/or inconsistent with adequate transportation), foreign air carriers may be subject to these rules. What would be the economic impact of such a requirement?
Prior to the formation of the ARC, the
FOOTNOTE 18 77 FR 53159-02 (
* If some PEDs are found to be compatible with aircraft systems, should there be restrictions on the use of PEDs for other reasons?
* Should voice communications using other technologies such as voice over IP (internet) be limited or restricted? /19/
FOOTNOTE 19 Id. at 53162, question 5. END FOOTNOTE
The Association of Flight Attendants filed a comment and replied that voice over internet or cellular broadband should be banned to reduce in-flight disruptions, noting that most flight attendants and travelers find objectionable the possibility of numerous simultaneous voice calls. /20/
FOOTNOTE 20 Passengers Use of Portable Electronic Devices on Board Aircraft, Docket No.
FOOTNOTE 21 Id. END FOOTNOTE
In addition to the
FOOTNOTE 22 See 74 FR 68983 (
FOOTNOTE 23 74 FR 68983 (
Here, as with the tarmac delay rules, the Department believes that this practice may be harmful or injurious to the passenger and there may not be a way for the passenger to reasonably avoid the harm. Allowing voice calls on passenger aircraft may be harmful because people tend to talk louder on cellphones than when they're having face-to-face conversations. They are also likely to talk more and further increase the noise on a flight, as passengers would not be simply talking to the persons sitting next to them but can call whomever they like. While some planes may already have seat-back phones in place, we believe that most are rarely used and the Department's concern is not about individual calls but rather the cumulative impact of allowing in-flight calls in close quarters.
In this ANPRM the Department is seeking comment on whether permitting the use of mobile wireless devices for voice calls on aircraft amounts to an unfair practice under section 41712 using the test listed above, and whether there may be countervailing benefits to consumers or competition should voice calls be allowed. Further, we seek comment on whether other types of communications and technologies (like seat-back phones), may also be considered to be an unfair practice under section 41712.
As noted above, 49 U.S.C. 41702 gives the Department the authority and responsibility to ensure safe and adequate service in domestic air transportation. As with section 41712, the Department and its predecessor in these matters have previously used this authority to address actions that have harmful effects on air travelers. In this instance, the Department feels that the potentially harmful effect to consumers is discomfort.
In 1973, the Civil Aeronautics Board (CAB) issued a "smoking rule" under its economic regulations titled, "Part 252--Provision of Designated `No Smoking' Areas Aboard Aircraft Operated by Certificated Air Carriers," which mandated designated "no smoking" areas on commercial flights. /24/ The rule predated a Congressional ban on smoking on scheduled flights. In the preamble to the rule, the CAB cited a joint study by the
FOOTNOTE 24 38 FR 12207 (
FOOTNOTE 25 The CAB stated, "unlike persons in public buildings, nonsmoking passengers on aircraft may be assigned to a seat next to, or otherwise in close proximity to, persons who smoke and cannot escape this environment until the end of the flight." END FOOTNOTE
During the past two months, the Department's Aviation Enforcement Office has received more than 90 consumer comments from the public expressing dissatisfaction over the possibility of permitting in-flight voice calls, and no comments in support of such calls. /26/ In addition to the consumer comments noted above, some entities have made public statements in the media indicating various positions on the issue of voice calls.
FOOTNOTE 26 The Aviation Enforcement Office categorizes communications received from consumers as complaints, comments, or inquiries. A `comment' for this purpose is an expression of opinion on an issue, as opposed to a complaint about a specific incident that the consumer was involved in. These `comments' sent to the Aviation Enforcement Office are not comments in the rulemaking sense; they were not filed in response to this ANPRM and are not in the docket. END FOOTNOTE
FOOTNOTE 27 See U.S. airlines want to stay cell phone free, CNNMoney, http://money.cnn.com/2013/12/24/technology/airline-cell-phones/ (
FOOTNOTE 28 See DOT says not so fast over
FOOTNOTE 29 See U.S. airlines want to stay call phone free, supra note 26. END FOOTNOTE
FOOTNOTE 30 S.1811 (
FOOTNOTE 31 H.R. 3676 (
The concerns raised by the public, airlines, flight attendants, and members of
Unlike other public environments, the option to remove oneself from the disruption, inconvenience, and/or nuisance of listening to someone else's phone call does not appear to exist on an airplane. Further, the Department believes that the possibility of cumulative impact of having a large number of passengers talking on their cell phones increases the level of passenger discomfort. The Department seeks comment, described more specifically below, on whether it would be feasible to create "quiet sections" as exist on
As we consider whether the passenger experience would be so disrupted by in-flight calls that to permit those calls would be an "unfair" practice and/or render the service provided "inadequate," we seek comment on the following issues. The most helpful comments reference a particular part of the proposal, explain the reason for any recommended change, and include supporting data as well as cost and benefit information.
1. Is it necessary for the Department to propose a rule to deem passenger voice communications as an unfair practice, and ban voice communications on passengers' mobile wireless devices on flights conducted under 14 CFR Part 91 Subpart K (fractional ownership programs), Part 121 (generally, scheduled airlines and charter operators of large aircraft), Part 125 (operations with aircraft having 20 or more passenger seats where common carriage is not involved), Part 129 (foreign air carriers), and/or Part 135 (commuter, on demand and air-taxi operations) within, to and from
2. Information on the possible benefits of allowing voice communications on passengers' mobile wireless devices on flights conducted under 14 CFR Part 91 Subpart K (fractional ownership programs), Part 121 (generally scheduled airlines and charter operators of large aircraft), Part 125 (operations with aircraft having 20 or more passenger seats where common carriage is not involved), Part 129 (foreign air carriers), and/or Part 135 (commuter, on demand and air-taxi operations) within, to and from
3. Whether a proposed ban should include all in-flight voice communications on mobile wireless devices regardless of whether the mode is through an Airborne Access System, Wi-Fi, or satellite. If so, why?
4. Whether a proposed ban should include exceptions for charter flights, or at least certain charter flights such as single entity charters. If so, why?
5. Whether a ban if adopted should define `mobile wireless devices.' The House bill,
6. Whether the Department should consider text-to-speech technologies as an unfair practice under 49 U.S.C. 41712, and/or inconsistent with adequate transportation pursuant to 49 U.S.C. 41702. We seek comment on the benefits or costs of including text-to-speech technologies if the Department determines that in-flight voice communications should be banned or restricted as an unfair practice. In the alternative, we seek comments on the benefits or costs of excluding these technologies from a proposed ban. We also seek comment on whether the Department should consider an exemption from any ban on text-to speech voice applications for systems aimed at facilitating/improving accessibility for passengers with disabilities. The most helpful comments explain the reason or basis for any recommended change, and include supporting data.
7. Whether a proposed ban on voice communications on passengers' mobile wireless devices should not apply prior to the aircraft door closing for departures or after the aircraft door opens for arrivals as this is already permitted today. In other words, whether a proposed ban should begin when the aircraft door closes and is about to take off and end when the aircraft lands and the aircraft door opens. We solicit any additional comments or considerations regarding the duration of the ban on board an aircraft.
8. If the Department issues a notice of proposed rulemaking to ban in-flight voice communications, should that proposed rule account for any of the following considerations:
a. Whether the Department should consider permitting exceptions to the in-flight voice communications ban such as for personal, passenger-related emergencies. If so, how would those be defined?
b. Whether the Department should exempt from the ban any crewmember (where
9. The impact on the flying public of permitting in-flight voice communications. What specifically could be harmful, disruptive, or injurious to the flying public (e.g., impact of allowing in-flight voice calls on some passengers' productivity as they work during a flight)? What could be beneficial?
10. Comments on the possible utility of a quiet zone or a talking zone, for passengers to avoid having to listen to in-flight calls. Is a physical structure (i.e., some kind of enclosure) necessary to create a quiet zone? If so, what are the possible costs and benefits of creating an enclosed area on an aircraft? Is it technically feasible? What design changes would need to be made to the aircraft? What are the possible costs and benefits of such a change to an airline? How would that affect the load capacity of the plane if such changes were implemented?
11. What other options may exist to mitigate the possible disruption of in-flight voice calls? Is there a reasonable way to mitigate the possible disruption?
12. Whether permitting in-flight voice calls is more or less disruptive than other current in-flight "disruptions," such as in-person conversations between passengers If so, why?
13. Whether the benefits of permitting in-flight voice calls outweighs the benefits of prohibiting in-flight voice calls. Describe the nature of those benefits and provide supporting data where possible.
14. Whether the costs of permitting in-flight voice calls outweighs the costs of banning in-flight voice calls. Describe the nature of those costs and provide supporting data where possible.
15. Whether permitting passengers to use all other mobile wireless communications services (e.g., devices for texting, emailing and surfing the Web) except in-flight voice communications would mitigate the drawbacks of a proposed ban on voice communications.
16. We understand that today a number of foreign air carriers allow the use of passenger cellular telephones with on-board cellular telephone base stations (picocells). We solicit comment from these carriers and from passengers who have flown on these carriers regarding their flight experiences. More specifically, to what extent have passengers used their cell phones for voice communications on airplanes that are equipped for cell phone communications? Have the air carriers received passenger comments or complaints related to cell phone voice communications? If so, what comments or complaints have been received? If complaints or issues were reported, did these issues rise to the level in which they would be considered to be an unfair practice to consumers, and/or inconsistent with adequate transportation pursuant to 49 U.S.C. 41712 and 49 U.S.C. 41702? If DOT were to make such a determination (that voice calls are unfair and/or inconsistent with adequate transportation), foreign air carriers may be subject to these rules. What would the economic impact of such a requirement?
17. Is there any other information or data that is relevant to the Department's decision? We note that the most useful comments will explain the reason the information or data is relevant as well as rationale for any recommended change, and include supporting data as well as cost and benefit information. We note that we are not addressing in this rulemaking any safety-related or security-related issues that may exist with the use of mobile wireless devices for voice calls on aircraft. The
A. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures
This action has been determined to be significant under Executive Order 12866 and the
Executive Orders 12866 ("Regulatory Planning and Review") and 13563 ("Improving Regulation and Regulatory Review") require agencies to regulate in the "most cost-effective manner," to make a "reasoned determination that the benefits of the intended regulation justify its costs," and to develop regulations that "impose the least burden on society." Additionally, Executive Orders 12866 and 13563 require agencies to provide a meaningful opportunity for public participation. Accordingly, we have asked commenters to answer a variety of questions in order to elicit practical information about any cost or benefit figures or factors, alternative approaches, and relevant scientific, technical and economic data. These comments will help the Department evaluate whether a proposed rulemaking is needed and appropriate.
B. Executive Order 13132 (Federalism)
This ANPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 ("Federalism"). This notice does not propose any regulation that (1) has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government, (2) imposes substantial direct compliance costs on State and local governments, or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
C. Executive Order 13084
This ANPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 ("Consultation and Coordination with Indian Tribal Governments"). Because none of the topics on which we are seeking comment would significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), no person is required to respond to a collection of information unless it displays a valid OMB control number. This ANPRM does not propose any new information collection burdens.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this notice.
Issued this 14th Day of
Secretary of Transportation.
[FR Doc. 2014-03684 Filed 2-21-14;
BILLING CODE 4910-XX-P
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