[As published by Kevin Robillard in Politico]
The FCC took a step Thursday toward allowing cellphone calls in the air — but not before the Transportation Department announced it will consider using its own authority to ban them.
The move sets up a future sought by many members of Congress and the traveling public: Airline passengers could use their cellphones to text and access data during air travel but not to annoy their seatmates with hours of yapping.
Transportation Secretary Anthony Foxx’s announcement Thursday came after weeks of outcry from travelers, lawmakers and the airlines themselves about the FCC’s move toward relaxing its long-standing restrictions on both voice and data use of cellphones in flight. Foxx made his statement just before the FCC took up the issue Thursday afternoon.
“We believe USDOT’s role, as part of our Aviation Consumer Protection Authority, is to determine if allowing these calls is fair to consumers. USDOT will now begin a process that will look at the possibility of banning these in-flight calls,” Foxx said in a statement emailed to POLITICO. “As part of that process, USDOT will give stakeholders and the public significant opportunity to comment.”
Any regulation coming from the FAA wouldn’t overrule the FCC’s decision, which would deal solely with the technical question of whether it’s safe and feasible to allow cellphone use on airplanes.
The FCC went ahead with its proposal anyway Thursday, voting 3-2 to issue a notice seeking comment on a number of changes to its rules.
FCC Chairman Tom Wheeler defended the decision, saying that “this is a rule about technology, not about behavior.” While Wheeler said he welcomed Foxx’s move, he pointed out that without the FCC’s change, passengers wouldn’t be able to text, surf the Internet or use email at altitude.
“You won’t be able to do texting, email or Web unless we deal with the issue here,” he said. “With this order we move forward with our responsibility, just as other agencies move forward with theirs.”
The FAA recently decided to allow gadgets like tablets and e-readers to stay on throughout flights, and European airlines have allowed in-flight calls for several years, so there’s little doubt it is safe to make calls from 30,000 feet up. But the annoyance factor still has had people up in arms ever since the FCC started talking about loosening its restrictions.
“Over the past few weeks, we have heard of concerns raised by airlines, travelers, flight attendants, members of Congress and others who are all troubled over the idea of passengers talking on cellphones in flight — and I am concerned about this possibility, as well,” Foxx said in his statement. “As the FCC has said before: Their sole role on this issue is to examine the technical feasibility of the use of mobile devices in flight.”
Wheeler stuck to that stance while testifying Thursday before the House Energy and Commerce’s subcommittee on communications and technology. Wheeler said he wouldn’t want to be stuck next to a loud passenger during a flight either but that it was clear there’s no technical reason for the FCC to block in-air voice calls.
“This is the responsible thing to do,” he said during his opening statement. “When the justification for the rule no longer exists, the rule should no longer exist.”
Wheeler and Foxx spoke by phone Thursday morning to discuss Foxx’s announcement, a fact Wheeler disclosed in his testimony, prompting a frenzy of rumor-mongering on Capitol Hill.
Foxx’s move met little dissent.
Nick Calio, the president and CEO of Airlines for America, testifying Thursday at a House hearing on the aviation industry, said regulators should determine whether allowing cellphones to be used for voice calls in flight is safe and should leave further decisions up to the airlines.
“If they do so, we believe the decision should be left up to individual carriers as to whether they want to institute a policy or not,” Calio said. “In considering that, they’ll consider the safety of their passengers and their crews and customer input.”
Panasonic, the world’s largest supplier of in-flight communications equipment, took a similar stance and said airlines should decide whether to allow voice calls.
“Fears of loud chatter disrupting passengers during flights have proven to be unfounded overseas and reports of problems due to voice cellphone use have been virtually non-existent,” said David Bruner, the company’s vice president of global communications services. “We applaud the FCC for standing up for the American consumer and allowing this process to move forward.”
The cellphone industry’s main trade group, the Telecommunications Industry Association, said Wednesday it hoped the FCC would give in-flight cellphone use the go-ahead. The association didn’t respond to a request for comment on DOT’s move.
Most U.S. airlines said shortly after the FCC first proposed allowing in-flight calls that they would continue to ban in-flight voice calls but that their stances could change based on consumer demand. A Quinnipiac University poll released Wednesday found that 59 percent of Americans opposed allowing calls in the air with only 30 percent supporting such a move.
Flight attendant unions, which feared that endless in-flight conversations could lead to “air rage” and new problems for their members, praised Foxx’s decision while criticizing the FCC.
“Flight attendants and passengers are united on this issue — there should be no voice calls in-flight,” the Association of Flight Attendants-CWA said in a statement after the FCC vote. “As first responders in the aircraft cabin, flight attendants know that this reckless FCC proposal would have negative effects on aviation safety and security.”
“Flight attendants and the traveling public have been vocal in our opposition to the FCC allowing in-flight voice calls,” the Association of Flight Attendants-CWA said in a statement. “AFA looks forward to participating in this process and keeping the cabin a calm and safe environment.”
Ed Wytkind, president of the Transportation Trades Department of the AFL-CIO, was more strident, saying his union supports legislation to keep people from yakking all flight.
He said it’s one thing to let people use smartphones to check email but that cellphones for voice calls are “disruptive not only to passengers but to the employees on the flight.”
“We think it’s very disruptive and not consistent with what we think is a good, safe and consumer-friendly environment,” he said at the aviation industry hearing.
On the Hill, momentum had been building for legislation to ban in-flight calls. House Transportation Chairman Bill Shuster (R-Pa.) introduced such a bill Monday, which quickly grabbed more than 20 co-sponsors. Sen. Lamar Alexander (R-Tenn.) introduced companion legislation in the Senate on Thursday.
In a statement Thursday, Shuster seemed to put the brakes on his bill for the time being.
”If DOT has determined they have the authority to keep a ban on in-flight calls in place, then I look forward to working with them to ensure something the public supports by a 2-1 margin,” he said.
Oregon Rep. Peter DeFazio, a veteran member of the transportation panel who was the lead Democrat on the legislation, said he and other lawmakers would “pressure DOT to follow through with prohibiting cellphone calls on planes.”
DOT cited its authority for issuing the rule under its aviation consumer protection and enforcement authority. But that primarily involves ensuring that airlines or travel agents don’t treat people unfairly or deceptively, such as with fares, reports of on-time performance or violation of rules related to denied boarding compensation, lost bags, ticket refunds and related items.
The DOT’s consumer-protection division also is involved with civil rights enforcement that prohibits discrimination, including on the basis of race, religion, national origin or sex.
The Competitive Enterprise Institute, a libertarian group, questioned the grounds for DOT’s move. CEI fellow Marc Scribner said the move “runs counter to legislative intent and is clearly arbitrary and capricious.”
“It is absurd to believe that members of Congress and Department of Transportation bureaucrats are more responsive to airline passengers than the airlines who serve them,” he said.
The FCC’s action was controversial not just outside the agency but within it: At Thursday’s meeting, GOP Commissioners Ajit Pai and Michael O’Rielly voted against moving forward.
Democratic support was also qualified. As Commissioner Jessica Rosenworcel concurred on her vote, she said: “I do not like this proceeding. Because I believe as public servants we have a duty to look beyond these four walls and ask ourselves if our actions do in fact serve the public.”
Kathryn A. Wolfe and Brooks Boliek contributed to this report.