Friday, December 13, 2013
Shortly after the Federal Communications Commission, the agency responsible for regulating mobile wireless voice communication, invited public comment on a proposal to permit the use of in-flight mobile wireless service, the Department of Transportation suggested it may use its own regulatory authority over the airline industry to prohibit cell phone usage on consumer protection grounds. The FCC's proposal would only allow cell phones to be used on aircraft equipped with specialized on-board wireless equipment. Carriers would be free to restrict or prohibit phone use as a matter of corporate policy.
The DOT's authority to act in this area is unclear. Presumably the authority to act would derive from 49 U.S.C. § 40101(a)(9) which authorizes the Secretary of Transportation to prevent "unfair, deceptive, predatory or anticompetitive practices in air transportation." That strikes me as quite a reach on the agency's part. Subpart (a)(12) of the same code section directs the Secretary to rely on competition to "decide the variety and quality of ... air transport services." Cell phone usage appears to fit much more clearly under within this latter description.
Even if the DOT concludes it lacks the authority to regulate the use of cell phones, the matter may not end there. Some legislators have introduced a bill that would grant the DOT the authority it needs to ban phone calls in-flight.