```

[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Proposed Rules]
[Pages 10049-10054]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03684]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 / 
Proposed Rules

[[Page 10049]]

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 251

[Docket No. DOT-OST-2014-0002]
RIN 2105-AE30

Use of Mobile Wireless Devices for Voice Calls on Aircraft

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation (DOT or Department) is 
seeking comment on the effects and implications of adopting a rule to 
ban voice communications on passengers' mobile wireless devices on 
flights within, to and from the United States. The Federal 
Communications Commission (FCC) recently issued a notice of proposed 
rulemaking that if adopted would, among other things, revise the FCC's 
prohibition on the use of cellular telephones (cell phones) or other 
mobile wireless devices to make it possible for aircraft operators to 
permit passengers to make or receive calls on-board aircraft. FCC's 
proposal to revise its rules was prompted by the availability of new 
technology and would provide the benefit of expanded access to mobile 
wireless services on-board aircraft, including data, text and voice 
services. See http://www.fcc.gov/document/review-rules-wireless-services-onboard-aircraft-nprm. However, under the Department's 
aviation consumer protection authority, we are seeking comment on 
whether voice calls on aircraft constitute an unfair practice to 
consumers pursuant to 49 U.S.C. 41712, and/or are inconsistent with 
adequate air transportation pursuant to 49 U.S.C. 41702, and if so 
whether such calls should be banned or restricted (e.g., not allow 
voice calls at night time).

DATES: Comments should be filed by March 26, 2014. Late-filed comments 
will be considered to the extent practicable.

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, U.S. Department of 
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave. SE., between 9:00 a.m. and 5:00 p.m. ET, 
Monday through Friday, except Federal holidays.
     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 Federal Register published on 
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
    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: Laura E. Jennings, Senior Trial 
Attorney, or Blane A. Workie, Acting Assistant General Counsel, Office 
of the Assistant General Counsel for Aviation Enforcement and 
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. 
SE., Washington, DC 20590, 202-366-9342, 202-366-7152 (fax), 
laura.jennings@dot.gov or blane.workie@dot.gov (email).

SUPPLEMENTARY INFORMATION: 

Background

    The Department of Transportation (DOT) and the Federal 
Communications Commission (FCC) have distinct areas of responsibilities 
with respect to the use of cell phones or other mobile devices for 
voice communications on aircraft. In general, as explained below, the 
FCC has authority over various technical issues, the Federal Aviation 
Administration (FAA) which is a component of DOT has authority over 
safety issues, and DOT's Office of the Secretary (OST) has authority 
over aviation consumer protection issues.
    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 FCC should revise its rules to enable the airlines to seek 
authorization to provide a service that would allow passenger use of 
such devices during flight.\1\
---------------------------------------------------------------------------

    \1\ FCC's authority on this issue is very broad and derives from 
a number of disparate statutory provisions. See, e.g., 47 U.S.C. 
151, 154(i), 161, 302a, 303(b), 303(r), 303(y), 308, 309, and 332; 
see also 47 CFR Subpart C of Part 1 (setting forth FCC's rules 
governing agency's exercise of authority to promulgate and amend 
rules); Sec.  1.903(c) (stating that authority for subscribers to 
operate mobile or fixed stations in the Wireless Radio Services--
which includes Part 87 Aviation Services--is included in the 
authorization held by the licensee providing service to them); Part 
87 generally (setting forth conditions under which radio stations, 
other than U.S. Government radio stations, may be licensed and used 
in the Aviation Services) and Subpart F of Part 87 (setting forth 
current rules governing use of ``aircraft stations''--i.e., mobile 
radio stations in the aeronautical mobile service, other than a 
survival craft station, located on board an aircraft).
---------------------------------------------------------------------------

    Pursuant to its aviation safety oversight authority in 49 U.S.C. 
106(f) and 44701(a), DOT's Federal Aviation Administration (FAA) has 
authority over whether Portable Electronic Devices (PEDs) using 
cellular technology can be safely used on aircraft. Pursuant to FAA 
guidance, InFO 13010, ``Expanding the Use of Passenger Portable 
Electronic Devices (PED),'' \2\ in order to allow passengers to use 
portable electronic devices aircraft operators must first make a 
determination that passenger PEDs used

[[Page 10050]]

on board their aircraft will not cause interference with the navigation 
or communication systems. This determination includes assessing the 
risks of potential cellular-induced avionics problems.\3\ Expanding 
passenger PED use requires an aircraft operator to revise applicable 
policies, procedures, and programs, and to institute mitigation 
strategies for passenger disruptions to crewmember safety briefings and 
announcements and potential passenger conflicts.
---------------------------------------------------------------------------

    \2\ http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2013/InFO13010.pdf.
    \3\ See 14 CFR 91.21, 121.306, 125.204, 135.44.
---------------------------------------------------------------------------

    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 FCC and the FAA, respectively. It is important to note 
that, if DOT does eventually determine that permitting voice calls is a 
practice that is unfair or that is inconsistent with adequate air 
transportation, one possible outcome is that providing passenger voice 
call service will not be permitted on any U.S. passenger flights.

FCC and Cellular Usage Issues

    Currently the FCC's rules prohibit the use of airborne cellular 
telephones (specifically those using the 800 MHz frequency) and the use 
of Specialized Mobile Radio (SMR) handsets while airborne.\4\ The cell 
phone ban was adopted in 1991 based on the threat of harmful 
interference from airborne use of cellular phones to terrestrial 
cellular networks. The SMR handset rule was adopted based on the same 
rationale--to prevent harmful interference with land-based 
operations.\5\
---------------------------------------------------------------------------

    \4\ Expanding Access to Mobile Wireless Services OnBoard 
Aircraft, Notice of Proposed Rulemaking, WT Docket No. 13-301, FCC 
13-157 (Dec. 13, 2013) (FCC Mobile Wireless NPRM) at 4-5 ]] 5-7; 47 
CFR 22.925, 90.423.
    \5\ Id. at 5 ] 7.
---------------------------------------------------------------------------

    Regarding other airborne broadband access, in 1990 the FCC 
allocated four megahertz of spectrum for commercial Air-Ground 
Radiotelephone Service, leading to the deployment of seat-back phones 
on aircraft.\6\ And, since the 1990s, airlines have been permitted to 
use mobile satellite service (MSS) spectrum to provide data service.\7\ 
Also, starting in 2001, the FCC authorized certain parties on an ad hoc 
basis to use Fixed Satellite Service spectrum to provide broadband 
connectivity to airborne aircraft.\8\ In 2005, the FCC cleared the way 
for airlines to begin offering Wi-Fi.\9\
---------------------------------------------------------------------------

    \6\ Id. at 9 ] 16.
    \7\ Id. at 10 ] 17.
    \8\ Id.
    \9\ Id. at 9 ] 16.
---------------------------------------------------------------------------

    Since the adoption of the FCC's ban on the use of cell phones 
during flight, there has been a proliferation of cell phones, smart 
phones, and other PEDs, leading to a significant increase in consumer 
demand for broadband connectivity on board aircraft and the number of 
passengers using PEDs during flight.\10\ The FAA recognized as much 
when it announced on October 31, 2013, that it had determined that 
airlines could safely expand passenger use of PEDs during all phases of 
flight and issued Information for Operators (InFO 13010, ``Expanding 
Use of Passenger Portable Electronic Devices (PED).'' \11\ The FAA did 
not address passenger use of voice communication using cellular 
technology enabled devices in the expanded PED policy because of FCC's 
existing ban on use of cell phones during flight.
---------------------------------------------------------------------------

    \10\ The FCC's NPRM cites a study predicting that by the end of 
2013 the number of commercial aircraft providing either Wi-Fi or 
cellular connectivity will reach 4,048, representing 21 percent of 
the global fleet. FCC Mobile Wireless NPRM at 2 ] 2. The FCC also 
cites a consumer survey indicating that from May 2012 to May 2013, 
69 percent of airline passengers who brought a PED onto an aircraft 
used their devices during the flight. Id. at 3 ] 2. Further, the FCC 
reports that global mobile traffic increased by 70 percent from 2011 
to 2012 and is projected to increase thirteen-fold by 2017. Id. at 
11 ] 22.
    \11\ See Press Release, FAA, FAA to Allow Airlines to Expand Use 
of Personal Electronics (Oct. 31, 2013), http://www.faa.gov/news/press_releases/news_story.cfm?newsId=15254.
---------------------------------------------------------------------------

    In light of the technical viability of and increasing public 
interest in using mobile communication services on aircraft in flight, 
on December 12, 2013, the FCC issued a Notice of Proposed Rulemaking 
(NPRM) proposing to revise outdated rules and to adopt a consistent 
regulatory framework that would allow airlines, subject to application 
of FAA and DOT regulations, to choose whether to enable mobile 
communications services using an Airborne Access System.\12\ In 
pertinent part, the FCC's NPRM proposes to harmonize its regulations 
governing the operation of mobile devices on aircraft across all 
commercial mobile spectrum bands, and to allow mobile communication 
services on aircraft only if managed by Airborne Access Systems.\13\ 
The FCC's proposal reiterates that the FAA must certify the Airborne 
Access Systems,\14\ and would permit mobile wireless device operations 
only on aircraft traveling more than 10,000 feet above the ground.\15\
---------------------------------------------------------------------------

    \12\ FCC Mobile Wireless NPRM at 1 ]1.
    \13\ Id. at 11-12 ]] 23-24.
    \14\ Id. at 11-12 ]] 23-24.
    \15\ Id. at 15 ] 31.
---------------------------------------------------------------------------

    The FCC's proposal makes clear that it is not proposing a mandate 
for airlines to permit any new airborne mobile services; rather, the 
FCC is proposing to revise current prohibitions on the operation of 
wireless devices on aircraft to provide the airlines with a regulatory 
path for offering their passengers additional airborne mobile broadband 
services across licensed commercial spectrum bands. The FCC states that 
its NPRM is ``technology-neutral,'' in that it does not propose to 
limit the use of mobile communications to non-voice applications; 
rather it states that any modifications would be at the discretion of 
individual airlines, in addition to any rules or guidelines adopted by 
the FAA or OST.\16\ The FCC proposal explains that the Airborne Access 
Systems will provide airlines with the flexibility to deploy or not 
deploy all mobile communications services. For instance, an airline 
could program the new equipment to block voice calls while permitting 
texting, email, and Web surfing.\17\
---------------------------------------------------------------------------

    \16\ Id. at 4 ] 4.
    \17\ As an example, the FCC states that Aer Lingus currently 
allows texting and Internet access using mobile communications 
devices but does not allow voice calls in the cabin, while Virgin 
Atlantic permits access to the Internet, texting, and making voice 
calls through its mobile communications system. Id. at 17-18 ] 41; 
See also Statement of Chairman Wheeler, Re: Expanding Access to 
Mobile Wireless Services Onboard Aircraft, Notice of Proposed 
Rulemaking, WT Docket 13-301, FCC 13-157 at 45 (Dec. 13, 2013) 
(Statement of Chairman Wheeler).
---------------------------------------------------------------------------

FAA and Cellular Usage Issues

    As stated above, even if the FCC determines that cell phones or 
other mobile devices used during flight would not interfere with 
cellular networks and revises its ban, FAA safety regulations would 
still apply. The FAA is responsible for determining whether cellular 
technology can safely be used on aircraft. Any installed equipment such 
as Airborne Access Systems would be subject to FAA certification, just 
like any other piece of hardware. In addition, the aircraft operator 
would have to determine that the use of this system will not interfere 
with the navigation and communications systems of the particular type 
of aircraft on

[[Page 10051]]

which it will be used before any restrictions are lifted.
    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?
    On October 31, 2013, the FAA announced, based on the report of the 
PED Aviation Rulemaking Committee (ARC), that it had determined that 
airlines could safely expand passenger use of PEDs during all phases of 
flight. Cell phones were excluded from the scope of the ARC's report 
because of the FCC's rules prohibiting airborne calls using cell 
phones. In its announcement the FAA stated that passengers with PEDs 
with cellular capabilities must continue to disable those capabilities 
during flight (i.e., cellular service turned off).
    Prior to the formation of the ARC, the FAA, on August 31, 2012, 
issued a Notice of Policy, requesting comment on current policy and 
guidance regarding passenger use of PEDs on-board aircraft.\18\ The 
Notice sought comment on several items including passenger perspectives 
on PEDs, and asked:
---------------------------------------------------------------------------

    \18\ 77 FR 53159-02 (Aug. 31, 2012).
---------------------------------------------------------------------------

     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\
---------------------------------------------------------------------------

    \19\ Id. at 53162, question 5.
---------------------------------------------------------------------------

    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\ Delta Air Lines also filed a comment stating that 64 
percent of its passengers indicated that the ability to make phone 
calls in flight would have a negative impact on the onboard 
experience.\21\
---------------------------------------------------------------------------

    \20\ Passengers Use of Portable Electronic Devices on Board 
Aircraft, Docket No. FAA 2012-0752.
    \21\ Id.
---------------------------------------------------------------------------

Office of the Secretary and Cellular Usage Issues

    In addition to the FAA's safety responsibilities, the Department 
(Office of the Secretary, Office of Aviation Enforcement and 
Proceedings) has the authority and responsibility to protect consumers 
from unfair or deceptive practices in air transportation under 49 
U.S.C. 41712. Using this authority, the Department has found acts to be 
``unfair'' if they are harmful to passengers but could not be 
reasonably avoided by passengers. For example, the Department relied 
upon section 41712 and its ``unfair'' practice component when 
promulgating the ``Tarmac Delay Rule,'' \22\ 14 CFR 259.4, in which the 
Department addressed problems consumers face when aircraft sit for 
hours on the airport tarmac.\23\ In doing so, the Department considered 
the harm to the consumer and the fact that the practice was unavoidable 
by the consumer. The Department concluded that regulatory action was 
necessary and that a three-hour time limit is the maximum time after 
which passengers must be permitted to deplane from domestic flights 
given the cramped, close conditions in aircraft and the inability of 
passengers to avoid lengthy tarmac delays.
---------------------------------------------------------------------------

    \22\ See 74 FR 68983 (December 30, 2009) and 76 FR 23110 (April 
25, 2011).
    \23\ 74 FR 68983 (Dec. 30, 2009).
---------------------------------------------------------------------------

    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 FAA and the then Department of Health, 
Education, and Welfare that concluded that the low levels of 
contaminants in tobacco smoke did not represent a health hazard to 
nonsmoking passengers on aircraft; however, the study found that a 
significant portion of the nonsmokers stated that they were bothered by 
tobacco smoke. As such, the principal basis for the rule was passenger 
discomfort.\25\ The CAB relied upon section 404(a)(1) of the Federal 
Aviation Act of 1958 (subsequently re-codified as section 41702), 
requiring air carriers ``to provide safe and adequate service, 
equipment and facilities,'' as well as section 404(a)(2), requiring air 
carriers to establish, observe, and enforce ``just and reasonable . . . 
practices'' as its statutory authority for this rule. While the initial 
1973 determination may have been based primarily upon passenger

[[Page 10052]]

discomfort issues, it is important to note that in more recent actions 
(statutory ban on smoking aboard aircraft in 49 U.S.C. 41706 and the 
regulatory ban in part 252 on smoking tobacco products), health risks 
were among the concerns upon which these actions were based. Through 
this ANPRM we seek to explore whether the potential for voice 
communications on mobile wireless devices would necessitate rulemaking 
pursuant to our authority to ensure adequate service.
---------------------------------------------------------------------------

    \24\ 38 FR 12207 (May 10, 1973).
    \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.''
---------------------------------------------------------------------------

    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. The Association of Flight Attendants released a statement 
opposing voice calls, stating: ``As the last line of defense in our 
nation's aviation system, flight attendants understand the importance 
of maintaining a calm cabin environment, and passengers agree.'' \27\ 
Similar views were expressed by several U.S. airlines. Delta Air Lines 
publicly stated it will not permit voice calls regardless of what the 
government allows, citing ``overwhelming sentiment'' to keep the ban in 
place.\28\ JetBlue Airways and United Airlines have also indicated that 
they intend to keep the ban on calls in place.\29\ In addition, 
legislation has been introduced in the House of Representatives and 
Senate to address the concern over in-flight voice calls. On December 
12, 2013, Senator Diane Feinstein and Senator Lamar Alexander 
introduced legislation, titled Commercial Flight Courtesy Act,\30\ to 
ban cell phone conversations on commercial airline flights, but permit 
the use of texting and other electronic communication, pending FCC 
approval. That same week, Rep. Bill Shuster introduced a bill, 
Prohibiting In-Flight Voice Communications on Mobile Wireless Devices 
Act of 2013,\31\ to prohibit in-flight voice communications, but permit 
other types of electronic communication.
---------------------------------------------------------------------------

    \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.
    \27\ See U.S. airlines want to stay cell phone free, CNNMoney, 
http://money.cnn.com/2013/12/24/technology/airline-cell-phones/ 
(Dec. 24, 2013).
    \28\ See DOT says not so fast over FCC call to lift ban on in-
flight calls, Associated Press, http://www.cbsnews.com/news/fcc-says-lift-ban-on-in-flight-calls-dot-replies-not-so-fast/ (last 
updated Dec. 12, 2013).
    \29\ See U.S. airlines want to stay call phone free, supra note 
26.
    \30\ S.1811 (Dec. 12, 2013).
    \31\ H.R. 3676 (Dec. 9, 2013).
---------------------------------------------------------------------------

    The concerns raised by the public, airlines, flight attendants, and 
members of Congress regarding the possibility of in-flight voice calls 
on aircraft have prompted the Department to issue this advance notice 
of proposed rulemaking seeking comment on use of mobile wireless 
devices for voice calls on aircraft. Permitting voice calls in an 
enclosed cabin space has the potential, according to comments the 
Department received, to drastically alter the flying public's 
experience.
    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 Amtrak trains and in other public 
places, or to issue guidelines on when airlines should disable 
passenger voice communication technology at certain times or under 
certain circumstances (i.e., at night time, on flights of a certain 
length, etc.) . While the Department does not oppose the use of cell 
phones and other mobile devices for mobile wireless data services, such 
as sending and receiving text messages and email, there is concern that 
the pervasiveness of in-flight voice calls could create an oppressive 
environment for passengers, especially for those on long-haul flights. 
We note that we are not considering the inclusion of seat-back phones 
or other phones installed on aircraft in a proposed ban. While 
passengers are able to make voice calls in-flight through such phones, 
the service is usually relatively expensive, sparingly used, and to our 
knowledge have been in use for years largely without incident. We are 
concerned about the cumulative impact of allowing in-flight calls 
across our national aviation system, rather than individual calls which 
may be seen as ``petty annoyances.''
    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 the United States. If so, on 
what basis is there a need for this regulation? We note that when in 
the airspace of a foreign country, a U.S. aircraft operator may allow 
the use of PEDs only if it is consistent with that country's rules.
    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 the United States. Are there 
airlines that would opt to provide this service to passengers, should 
the opportunity arise? Are there passengers or passenger groups that 
would like to be allowed to use their mobile devices for voice 
communications while in flight (e.g., anytime, for important business 
or personal calls, emergencies)? Whether or not the Department should 
refrain from issuing a notice of proposed rulemaking on this topic and 
instead allow the airlines to develop individual policies.
    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

[[Page 10053]]

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, Prohibiting In-Flight Voice Communications on 
Mobile Wireless Devices Act of 2013, defines mobile wireless devices as 
any portable wireless telecommunications equipment utilized for the 
transmission or reception of voice data. We would consider this 
definition to include: Cellular handsets, computers, tablets, 
electronic games, and any other device that uses radio links to 
establish a voice call with another party or parties.
    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 FAA regulations permit), any Federal law enforcement officer, 
Federal Air Marshal, FAA Aviation Safety Inspector (ASI), or National 
Transportation Safety Board (NTSB) Investigator, conducting official 
business.
    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 Transportation Security Administration (TSA) 
exercises authority over the security of the traveling public. FAA has 
authority over whether PEDs using cellular technology can be safely 
used on aircraft.

Regulatory Notices

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 Department of Transportation's Regulatory Policies 
and Procedures. It has been reviewed by the Office of Management and 
Budget under that Order.
    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

[[Page 10054]]

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. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
A direct air carrier or foreign air carrier is a small business if it 
provides air transportation only with small aircraft (i.e., aircraft 
with up to 60 seats/18,000 pound payload capacity). See 14 CFR 399.73. 
If the Department proposes to adopt the regulatory initiative discussed 
in this ANPRM, it is possible that it may have some impact on some 
small entities but we do not believe that it would have a significant 
economic impact on a substantial number of small entities. We invite 
comment to facilitate our assessment of the potential impact of these 
initiatives on small entities.

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 February 2014, in Washington, DC.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2014-03684 Filed 2-21-14; 8:45 am]
BILLING CODE 4910-XX-P
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