# Memorandum
U.S.Departmentof Transportation OfficeoftheSecretary ofTransportation Subject: 

### Notice ofCommunication: (Docket: DOT-OST-2014-0002) Date: 

### July 30, 2014

From: 

### Blane A Workie,

To: 

### ActingAssistantGeneral Counsel Office ofAviationEnforcementand Proceedings

Cheryl Collins .• ,,,I• 

### Dockets Manager, Docket Operation '-;:;•'


### Pleaseplacethis memorandum inthe appropriate file andinthe Docket. Participants

• KevinRogers, CEO, AeroMobile • Ann-Marie Mullan, Head ofLegal and Regulatory, AeroMobile • CarlosNaida, Attorney, SquirePattonBoggs • JessicaElder, Associate, LMI Advisors • Blane Workie, ActingAssistant General Counsel, AviationEnforcement andProceedings • JonathanDols, Deputy Assistant General Counsel, AviationEnforcementand Proceedings • LauraJennings, SeniorAttorney, AviationEnforcement andProceedings Summary ofMeeting OnJuly 9, 2014, representatives ofAeroMobile, aUK-basedtelecommunications service providerthatoffers mobile connectivity (voice, data, andtext service) to foreign airlines, met with staffmembers from the Department's Office ofAviationEnforcement and Proceedingsto share its experience as a mobile serviceproviderto foreign aircarriers and itsviews ofthe Department'srecent advance notice ofproposedrulemaking. AeroMobile statedthatitinstalls equipment on aircraftthat enable airlinepassengers to use their ownmobilephones for voice, texting andmobile datawhile in-flight. It

### explainedthatthis equipmentincludes a crewcontrolpanelthatthe crewcanuse to enable or disableparticular types ofservice (e.g., voice). AeroMobile indicatedthat almost all ofits airline clients have selectedto permitthe use ofmobilephones for voice, texting and datawhile in-flight. AeroMobile emphasized that in its experience with airline customers overmanyyears of

### operationthatitwasnotaware ofany dissatisfaction or complaints regarding mobile connectivity, includinguse ofmobile wireless devices for voice communications. AeroMobile statedthatthe U.S. is the onlyjurisdictioninthe worldto considerproposing a ban onvoice communications. Regarding usage ofits services, AeroMobile estimatedthat 80% of usage is for text/data services and 20% ofusage is for voice calls. Onaverage, AeroMobile statedthat voice calls lastno longerthantwo minutes. Also, AeroMobile statedthatthe technology prohibitsnumerous simultaneous calls-possibly only 8to 15 calls may bemade at onetime. Withrespectto costto passengers for voice communications on aircraft, AeroMobile statedthat therates thatwould apply for internationaltravel would be less thanthosethat apply to seat-back phones; however, itwould stillbe considerable as internationalroamingrates apply tothose services. AeroMobile seemed less certain aboutthe rates thatwould apply for domestic transportation. AeroMobile also raisedjurisdictionalquestions. Regarding flights to and from the United States, AeroMobile asked whetherthe Departmentintendedtherestriction onvoice callsto extendto the entire duration ofa flight or only within U.S. airspace. AeroMobile notedthatforeign air carriers are currentlypermittedto allow theirpassengersto use mobile wireless devices for voice calls on flights to and from the U.S. exceptfor whenthe aircraft is inU.S. airspace. AeroMobile suggestedthatthe Department considertreating international flights differently from domestic flights. As a follow up to this meeting, onJuly 29, 2014, AeroMobile submittedthe attached document.

Attachment

# SQUIREC' PATTON BOGGS

July 29, 2014 

### VIA EMAIL U.S. Department ofTransportation 1200 New Jersey Avenue, SE Washington, D.C. 20590 Squire Patton Boggs (US) LLP 1200 19th Street, NW Suite 300 Washington, D.C. 20036 0 +1 202 626 6600 F +1 202 626 6780 squirepattonboggs.com

Carlos M. Naida T +1 202 626 6659 Carlos.Nalda@squirepb.com



### Re: Use of Mobile Wireless Devices for Voice Calls on Aircraft Docket No. DOT-OST-2014-002, RIN No. 2105-AE30 To Whom It May Concern: AeroMobile Communications Limited ("AeroMobile") respectfully submits this information in the record ofthe above-captioned proceeding in connection with a recent meeting with the Department ofTransportation ("DoT") staff. On July 9, 2014, Kevin Rogers, CEO of AeroMobile, Ann-Marie Mullan, Head of Legal and Regulatory for AeroMobile, Jessica Elder of LMI Advisors, regulatory consultant to AeroMobile, and the undersigned counsel to AeroMobile met with Blane Workie, Deputy Assistant General Counsel, Office ofAviation Enforcement and Proceedings, Office ofthe Secretary, Laura Jennings, SeniorAttorney, Aviation Enforcement and Proceedings, Office ofthe General Counsel, and Jonathan Dols, Deputy Assistant General Counsel, Office ofthe General Counsel, Aviation Enforcement. During the meeting, AeroMobile underscored the importance of allowing airlines the opportunity to choose which in-flight mobile connectivity ("'MC") applications, including voice service, to offerto passengers on long-haul international flights. AeroMobile also highlighted the following issues to supplement the record in this proceeding. 1. Passenger Utilization Statistics AeroMobile's IMC solution currently operates on a number of commercial aircraft throughout Europe, Asia, Africa, the Middle East, Oceania, and the Americas. IMC systems provide an alternative to Wi-Fi connectivity and provide passengers with a convenient and familiar way to use their mobile devices fortext, data and voice applications, just as ifthey were roaming internationally.

44 Offices in 21 Countries Squire Patton Boggs (US) LLP is part ofthe international legal practice Squire Patton Boggs, which operates worldwide through a number ofseparate legal entities. Please visit squirepattonboggs.com for more information.Squire Patton Boggs (US) LLP July 29, 2014

Although some ofAeroMobile's customer airlines have chosen not to enable voice based on their own assessment of passengers' needs, most ofAeroMobile's customers have implemented the full range of IMC applications. AeroMobile has never received a report of passenger discomfort or airline disruption with respect to any of its IMC offerings, including voice. Indeed, a Federal Aviation Administration ("FAA") study of cell phone use on foreign airlines confirmed that there have been no adverse impacts ofvoice service on international flights. 1With respect to IMC utilization, AeroMobile reviewed the usage of nearly 450,000 passengers on four customer airlines serving long-haul routes between April1, 2014 and July 15, 2014. As indicated in the attached report, fifty-three percent oftotal connected passengers use AeroMobile's IMC system for data applications, thirty-nine percent use the system for SMS text and only six percent of users place or receive voice calls. These calls are very limited, with only a small number of calls perflight (typically on day flights; e.g., westbound from Europe to the United States) lasting an average ofjust overthree minutes. U.S. passengers on foreign airlines (i.e., passengers based in the U.S. and served by U.S. wireless carriers) have demonstrated a greater interest in remaining connected than passengers from other countries. U.S. travelers use their mobile devices fortext and data applications considerably more than foreign passengers, but they are less likely to use their mobile device for voice calls. AeroMobile's data reveals: (i) U.S. passengers represent eight percent of all IMC users in this sample and nearly 30 percent ofthe IMC users on one airline; (ii) U.S. passengers prefer quiet data applications, using nearly twice the amount of data and sending fifty percent more texts as foreign passengers; and (ii) U.S. passengers place and receive fewer calls than foreign passengers, although their calls tend to last a minute and a half longer than other users' calls. These data indicate a strong demand for IMC from U.S. travelers, as well as greater selectivity with respect to the use ofvoice onboard aircraft in flight. However, foreign airlines currently suspend IMC offerings in U.S. airspace due to uncertain U.S. rules and policies governing IMC operations. AeroMobile systems operate on approximately 40-50 long-haul international flights arriving in or departing from the United States daily, which is a small fraction oftotal U.S. commercial flight traffic. Thus, U.S. consumers with a demonstrated desire for IMC are deprived of connectivity for a significant period and during the most important phases offlight --just aftertaking and just priorto landing. 2. IMC Business Model Under existing business models, passenger use of IMC applications is akin to roaming in a foreign country- in this case, roaming onto an international flight served by a global IMC provider. 2 Indeed, existing IMC equipment onboard the aircraft is designed to work only with

1 Study ofthe Use of Cell Phones Onboard Aircraft, Docket No. FM-2012-0957, Notice of Availability and Request for Comments, 77 FR 54651 (rei. Sept. 5, 2012); Study ofthe Use of Cell Phones Onboard PassengerAircraft, DOT/FAA/AR-12/30 (rei. July 2012) ("Cell Phone Study").
2 IMC providers have their own country codes so that users can be connected to the same network regardless ofthe aircraft's location in the world.

2Squire Patton Boggs (US) LLP July 29, 2014

international capable, GSM-based mobile devices rather than the full range of U.S. domestic cell phones. 3 U.S. passengers that do not have international phones with international roaming activated are unable to access the IMC network for any connectivity application, including voice. AeroMobile's IMC system connects passengers' mobile devices to an off-board communications link, currently provided only by satellite. 4 Satellite communications can be more expensive than terrestrial-based alternatives, which affects the user's cost of using IMC applications on international flights. This backhaul cost is reflected in the pricing ofvoice calls, which are typically set at international roaming levels (several dollars per minute, established by the passenger's home wireless carrier). This pricing serves to limit voice usage and encourages passengers to use data and text applications. The cost and pricing structure for IMC applications on U.S. domesticflights could be very different than on long-haul international flights. For example, using a terrestrial air-ground backhaul link could provide a lower-cost alternative to carry traffic to the terrestrial network, reducing the cost ofvoice calls and other IMC applications on domesticflights. 5 Furthermore, while U.S. consumers may expect to use their existing mobile plans on domesticflights, there is no such expectation in the context of international travel where consumers are accustomed to international roaming charges and associated requirements. Given the international roaming model, including pricing and other requirements for passenger access to existing IMC offerings, it is reasonable forthe DoT to treat voice on longhaul international flights different than it may treat voice on U.S. domesticflights. Moreover, the FAA's Cell Phone Study confirms that no DoT action is required with respect to voice services on long haul international flights. The Cell Phone Study's finding of no adverse impact ofvoice availability would apply equally to international flights of U.S. and foreign airlines. 3. Voice Implementation and Jurisdictional Issues No foreign administration has considered banning voice applications when authorizing IMC systems to operate in their airspace. Instead, foreign administrations have allowed airlines to choose whetherto install IMC systems and whether to offervoice on IMC-equipped aircraft. Like other regulatory authorities around the world, the DoT should preserve airline choice and decline to adopt an absolute a 

### prioriban on in-flight mobile voice calls. Ifthe Department proposes to limit voice on IMC systems, any restrictions should seek to alleviate actual harms and be narrowly tailored to address those harms. Moreover, such restrictions should not place U.S. airlines at a competitive disadvantage relative to their foreign competitors. As noted above, the FAA's Cell Phone Study found no adverse impacts ofvoice

3 

### Next-generation IMC equipment will have frequencies and air interfaces to enable more users, including U.S. consumers, to access the offering. 4 

### International flights must rely on satellite links for off-board communications because IMC-equipped aircraft fly over oceans, where othertechnologies are unavailable.
5 

### Significantly lower costs would be essential for U.S. domestic passengers to use IMC with their existing "all you can eat" data or "unlimited calling" voice plans.

3Squire Patton Boggs (US) LLP July 29, 2014

availability on long-haul international flights, so international flights should be excluded from any potential DoT voice regulation. Lastly, foreign airlines should be excluded expressly from the scope ofany contemplated restrictions on IMC voice applications. AeroMobile respectfully submits that the DoT lacks jurisdiction to "reach into" a foreign aircraft cabin to restrict an amenity offered to passengers onboard a foreign airline, even ifthe aircraft is temporarily present in U.S. airspace. Numerous treaties that impact international aviation, including the Chicago Convention and Tokyo Convention, establish thejurisdiction of an aircraft's registering nation over activities that take place within the cabin of its registered aircraft. A voice ban impose by the DoT may not only overstep internationaljurisdictional bounds, but also may invite foreign nations to impose restrictions on activities, services and even content available within the cabin of U.S. airlines traversing their airspace. The DoT should refrain from any action that may place U.S. airlines at such risk. 4. Legal Basis for DoT Action In the AdvancedNotice ofProposed Rulemaking ("ANPRM"), the DoT requested comment on whether permitting the use of mobile devices for voice calls on aircraft would constitute an "unfair practice" to consumers pursuant to 49 U.S.C. 

### § 41712 orwould be so disruptive as to be inconsistent with adequate airtransportation pursuant to 49 U.S.C. 

### § 41702. As discussed in AeroMobile's comments in this proceeding, neither provision should apply because there is no basis to conclude that in-flight mobile voice service is an unfair or deceptive practice, or would be so disruptive as to be inconsistent with adequate airtransportation. To the extent that the DoT relies on either ofthese statutory provisions to adopt restrictions on in-flight voice service, it is important to recognize that these provisions have different scope. Section 41712's prohibition on unfair practices applies to both domestic and international flights, whereas Section 41702 provision governing adequate airtransportation applies to domesticflights only. Thus, if DoT concludes that the availability ofvoice service is inconsistent with adequate airtransportation under Section 41702, then the restrictions can apply onlyto U.S. domestic flights. AeroMobile submits that the DoT cannot conclude that in-flight voice service is unfair practice from a consumer protection standpoint under Section 41712, particularly with respect to long-haul international flights where the FAA's Cell Phone Study have confirmed no adverse impacts from voice availability. Moreover, it would not appear possible for DoTto limit such a finding to U.S. airspace because an aircraft's presence within or outside U.S. airspace would not change the nature of a voice offering. Thus, a positive finding under Section 41712 may require DoTto impose a voice restriction outside U.S. airspace, which has its ownjurisdictional challenges. In contrast, although there is limited information in the record (all ofwhich suggests voice restrictions are unnecessary), any finding under Section 41702 necessarily would be limited to U.S. domesticflights only. Indeed, the statute would require the DoTto treat domestic and international flights differently. Thus, voice restrictions can be applied to domesticflightsif designed to alleviate actual harms and be narrowly tailored to address those harms -without affecting the availability of voice service on long-haul international flights.

4Squire Patton Boggs (US) LLP July 29, 2014



### * * * * AeroMobile hopes that this information will assist DoT in appropriately tailoring the scope of any proposed in-flight voice restrictions, to the extent it decides to move forward with this proceeding. In the meantime, please do not hesitate to contact the undersigned with any questions regarding the foregoing.

Cc: Blane Workie Laura Jennings Jonathan Dols Sincerely,

Carlos M. Naida

5Squire Patton Boggs (US) LLP July 29, 2014



### Appendix- Passenger Usage Statistics
SUMMARY This report is based on activities from the 1stApril to the 15th ofJuly 2014

In total, there were 446,629 customers connected tothe AeroMobile network, across the 4 sample airlines. Eight per cent (8%) ofthe total connected passengers (37,579) were US subscribers. By airline, this broke down to:

Numberof Numberof US %US Airline Customers Customers Customers

A 31,534 9,247 29% B 278,652 9,736 3% 

### c 56,832 10,524 19% D 79,611 8,072 10% Ofthese, the percentage of customers who used each individual service were:

All Customers US Customers Data 53% 52% SMS 39% 34% Calls 6% 5% NB: two oftheairlines didnotallowvoice calls on theiraircraft A similar proportion ofUS subscribers to all customers used each service. Only a small proportion ofcustomers makevoice calls. Ofthe customerswho used each individual service, the average call length, data volumeorSMS sent was:
All Customers US Customers Data 0.65Mb 1.18Mb SMS 1.64 2.45 Calls 3.29 mins 5.03 mins Report

All Customers

%ofcustomers Average Data (Mb)

US Customers

6