
[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Proposed Rules]
[Pages 90258-90267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29830]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 260

[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: Notice of Proposed Rulemaking (NPRM).

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

SUMMARY: The Department of Transportation (DOT or the Department) is 
proposing to protect airline

[[Page 90259]]

passengers from being unwillingly exposed to voice calls within the 
confines of an aircraft. Specifically, the Department proposes to 
require sellers of air transportation to provide adequate advance 
notice to passengers if the carrier operating the flight allows 
passengers to make voice calls using mobile wireless devices. The 
Department also seeks comment on whether to prohibit airlines from 
allowing voice calls via passenger mobile wireless devices on domestic 
and/or international flights.

DATES: Comments should be filed by February 13, 2017. 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 Regulation Identifier 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 https://www.transportation.gov/dot-Web site-privacy-policy.
    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: Robert Gorman, Senior Trial Attorney, 
or Blane A. Workie, Assistant General Counsel, Office of Aviation 
Enforcement and Proceedings, U.S. Department of Transportation, 1200 
New Jersey Ave. SE., Washington, DC 20590, 202-366-9342, 202-366-7152 
(fax), robert.gorman@dot.gov or blane.workie@dot.gov (email).

SUPPLEMENTARY INFORMATION: 

Executive Summary

1. Purpose of the Regulatory Action

    The purpose of this action is to propose a method for regulating 
voice calls on passengers' mobile wireless devices on flights to, from, 
and within the United States. Permitting passengers to make voice calls 
onboard aircraft may create an environment that is unfair and deceptive 
to those passengers. While the Federal Communications Commission (FCC) 
currently prohibits the use of certain commercial mobile bands onboard 
aircraft, that ban does not cover Wi-Fi and other means by which it is 
possible to make voice calls. Moreover, in 2013, the FCC proposed 
lifting its existing ban, so long as certain conditions are met, as 
described in detail below. As technologies advance, the cost of making 
voice calls may decrease and the quality of voice call service may 
increase, leading to a higher prevalence of voice calls and greater 
risk of passenger harm.
    For these reasons, the Department proposes to require sellers of 
air transportation to provide adequate advance notice to passengers if 
the carrier operating the flight allows passengers to make voice calls 
using mobile wireless devices. Under this proposed rule, carriers would 
be free to set their own voice call policies, to the extent otherwise 
permitted by law, so long as carriers provide adequate advance notice 
when voice calls will be allowed. The requirement for airlines to 
provide advance notice when voice calls are allowed would not apply to 
small airlines (i.e., U.S. and foreign air carriers that provide air 
transportation only with aircraft having a designed seating capacity of 
less than 60 seats) or ticket agents that qualify as a small business. 
No advance notice is required if the carrier prohibits voice calls. The 
Department also seeks comment on whether to prohibit airlines from 
allowing voice calls via passenger mobile wireless devices on domestic 
and/or international flights.
    The Department takes this action under its authority to prohibit 
unfair and deceptive practices in air transportation or the sale of air 
transportation, and under its authority to ensure adequate air 
transportation, as further described herein.

2. Summary of Costs and Benefits

    The proposed rule would require airlines and ticket agents that are 
not small entities to disclose the airline's voice call policy if the 
airline chooses to permit voice calls. The Department's Preliminary 
Regulatory Impact Analysis (PRIA), found in the docket, examined the 
costs that ticket agents and airlines would incur to implement any 
disclosure requirements that would arise from allowing voice calls. For 
the period of 2017-2026, the PRIA estimated the cost to carriers to be 
$41 million and the cost to ticket agent costs to be $46 million. The 
PRIA found qualitative benefits to passengers in the form of improved 
information for those who wish to avoid (or make) voice calls. These 
costs and benefits are summarized in the chart below.

                                          Summary of Benefits and Costs
----------------------------------------------------------------------------------------------------------------
                                                         Quantitative                            Quantitative
         Proposed option          Nature of benefits        measure         Nature of costs         measure
----------------------------------------------------------------------------------------------------------------
Require disclosure of possible    Improved            Tickets purchased   Web site            Carrier costs of
 voice call exposure prior to      information for     for 10.2 billion    programming and     $41 million and
 ticket purchase.                  those who wish to   enplanements,       call center labor   ticket agent
                                   avoid (or make)     2017-2026.          hours for large     costs of $46
                                   voice calls.                            carriers, ticket    million, 2017-
                                                                           agents.             2026
----------------------------------------------------------------------------------------------------------------

Background

    On February 24, 2014, the Department issued an Advance Notice of 
Proposed Rulemaking (ANPRM) in Docket DOT-OST-2014-0002 titled ``Use of 
Mobile Wireless Devices for Voice Calls on Aircraft.'' The ANPRM was 
published in the Federal Register on February 24, 2014.\1\ We announced 
in the ANPRM

[[Page 90260]]

our intent to gather information on whether to propose a rule to ban 
voice calls on passengers' mobile wireless devices on commercial 
aircraft. We sought comment on the effects and implications of such a 
proposed rule. The ANPRM was issued in light of the FCC's proposed 
rule, published on December 13, 2013, that if adopted would make it 
possible for aircraft operators to permit passengers to make or receive 
calls onboard aircraft using commercial mobile spectrum bands.\2\
---------------------------------------------------------------------------

    \1\ Department of Transportation, Office of the Secretary, 14 
CFR part 251 [Docket No. DOT-OST-2014-0002], RIN 2105-AE30, 79 FR 
10049 (Feb. 24, 2014) (DOT ANPRM).
    \2\ 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); 79 FR 2615 
(January 15, 2014). See http://www.fcc.gov/document/review-rules-wireless-services-onboard-aircraft-nprm.
---------------------------------------------------------------------------

    Currently, FCC rules restrict airborne use of mobile devices that 
can operate on certain commercial mobile frequencies.\3\ As a result, 
U.S. airlines require that passengers disable their mobile devices or 
use ``airplane mode'' \4\ while an aircraft is airborne. The FCC's ban 
was adopted in 1991 based on the threat of widespread interference with 
terrestrial networks from airborne use of cell phones. With advances in 
technology and increasing public interest in using mobile 
communications services on airborne aircraft, the FCC issued its 2013 
NPRM proposing to revise what it described as outdated rules. The FCC 
proposes a regulatory framework that would allow airlines, subject to 
application of DOT regulations (of both the Office of the Secretary of 
Transportation (OST) and the Federal Aviation Administration (FAA)), 
the ability to allow passengers to use commercial mobile spectrum bands 
on their mobile wireless devices while in flight.\5\ The FCC's proposal 
would not require airlines to permit any new airborne mobile services; 
rather, it would provide a regulatory pathway for airlines to enable 
such services using an Airborne Access System (AAS).\6\ An AAS likely 
would consist of a base station (typically a picocell) and a network 
control unit. The system would receive low-powered signals from 
passengers' mobile wireless devices and transmit those signals through 
an onboard antenna either to a satellite or to dedicated terrestrial 
receivers. In either case, the system would be designed to minimize the 
potential for interference with terrestrial networks that prompted the 
FCC's original ban.\7\ The FCC's proposal notes that more than 40 
jurisdictions throughout the world, including the European Union (EU), 
Australia, and jurisdictions in Asia, have authorized the use of mobile 
communication services on aircraft without any known interference 
issues.\8\
---------------------------------------------------------------------------

    \3\ See 47 CFR 22.925, 90.423. The FCC prohibits use of the 800 
MHz Cellular Radiotelephone band while aircraft is in flight at any 
altitude. The FCC also prohibits the use of 800 and 900 MHz 
Specialized Mobile Radio frequencies on aircraft that typically fly 
at altitudes over one mile. There are no current restrictions on 
airborne use of the other bands used to provide typical mobile voice 
and data service, although the FCC's NPRM seeks comment on whether 
to extend restrictions to other frequencies. FCC Mobile Wireless 
NPRM at ] 5.
    \4\ This requirement does not apply to Wi-Fi use.
    \5\ FCC Mobile Wireless NPRM at 2-4.
    \6\ Id. at 2 ] 1.
    \7\ On May 9, 2013, the FCC issued an NPRM proposing to create 
new air-to-ground mobile broadband service in the 14 GHz band in the 
contiguous United States that would provide significantly greater 
data transmission capacity than exists in current services. 
Expanding Access to Broadband and Encouraging Innovation Through 
Establishment of an Air-Ground Mobile Broadband Secondary Service 
for Passengers Aboard Aircraft in the 14.0-14.5 GHz Band, Notice of 
Proposed Rulemaking, FCC 13-66, GN Docket 13-114, published at 78 FR 
41343 (July 10, 2013).
    \8\ FCC Mobile Wireless NPRM at 2 ] 3.
---------------------------------------------------------------------------

    The FCC's proposal is technology-neutral, in that it does not 
intend to limit the use of mobile communications to non-voice 
applications. The FCC states that any modifications to the AAS would be 
at the discretion of individual airlines, in addition to any rules or 
guidelines adopted by the DOT.\9\ The FCC explains that Airborne Access 
Systems will provide airlines with the flexibility to deploy or not 
deploy various mobile communications services.\10\ For instance, an 
airline could program the new equipment to block voice calls while 
permitting data and text services.\11\
---------------------------------------------------------------------------

    \9\ Id. at 4 ] 4.
    \10\ Id. at 17-18 ] 41.
    \11\ Id.
---------------------------------------------------------------------------

    In the Department's ANPRM, we explained that DOT and the FCC have 
distinct areas of responsibilities with respect to the use of cell 
phones or other mobile devices for voice calls on aircraft. The FCC has 
authority over various technical issues (as described above); the FAA, 
a component of DOT, has authority over safety issues; and DOT's OST has 
authority over aviation consumer protection issues.
    The FAA, pursuant to its aviation safety oversight authority in 49 
U.S.C. 106(f) and 44701(a), has authority to determine whether portable 
electronic devices (PEDs) \12\ can be safely used on aircraft. In 
October 2013, the FAA provided information to airlines on expanding 
passenger use of PEDs during all phases of flight without compromising 
the continued safe operation of the aircraft.\13\ However, the FAA 
guidance did not explicitly address the use of cell phones for voice 
calls, in light of the FCC's continued ban on such calls.\14\ Cell 
phones differ from most PEDs in that they are designed to send out 
signals strong enough to be received at great distances. Nevertheless, 
the FAA's safety authority over cell phones is similar to its authority 
over other PEDs and includes technical elements (e.g., whether cell 
phones would interfere with avionics systems), operational elements 
(e.g., whether the use of cell phones would interfere with effective 
flight safety instructions), and security elements (e.g., whether the 
use of cell phones creates a security threat that in turn impacts 
aviation safety). Pursuant to FAA regulations, before allowing 
passengers to use PEDs, aircraft operators must first determine that 
those devices will not interfere with the aircraft's navigation or 
communication systems. This determination includes assessing the risks 
of potential cellular-induced avionics problems.\15\ According to FAA 
policy and guidance, 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. Therefore, even if the FCC revises its ban, any installed 
equipment such as an AAS would be subject to FAA certification, just 
like other hardware.
---------------------------------------------------------------------------

    \12\ A portable electronic device is ``any piece of lightweight, 
electrically-powered equipment. These devices are typically consumer 
electronic devices capable of communications, data processing and/or 
utility. Examples range from handheld, lightweight electronic 
devices such as tablets, e-readers and smartphones to small devices 
such as MP3 players and electronic toys.'' See FAA Fact Sheet--
Portable Electronic Devices Aviation Rulemaking Committee Report 
(October 8, 2013).
    \13\ ``Expanding the Use of Passenger Portable Electronic 
Devices (PED),'' available at http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2013/InFO13010.pdf (``InFO 13010'').
    \14\ Nevertheless, we do not anticipate that the FAA will 
determine that the use of cell phones for voice calls would 
interfere with avionics systems.
    \15\ See 14 CFR 91.21, 121.306, 125.204.
---------------------------------------------------------------------------

    Many U.S. airlines currently offer Wi-Fi connectivity to 
passengers' mobile devices using FAA-approved in-flight connectivity 
systems. Like Airborne Access Systems, airborne Wi-Fi systems receive 
signals from passengers' mobile devices and relay those signals to 
satellites or dedicated ground towers. Wi-Fi spectrum is capable of 
transmitting voice calls as well as other types of data, such as video 
and text messages. The FCC does not prohibit voice calls over Wi-Fi; 
the FCC's current ban relates to the use of certain commercial mobile 
spectrum bands.

[[Page 90261]]

Thus, many U.S. carriers currently have the capability of allowing 
their passengers to make and receive voice calls in-flight over Wi-Fi. 
It should be noted that the Department is unaware of any U.S. carrier 
that currently permits voice calls; airlines and their Wi-Fi providers 
typically do not offer voice service.
    To summarize, the current proposed rulemaking would regulate voice 
calls onboard aircraft as a matter of consumer protection, rather than 
as a matter of ensuring aviation safety or preventing cellular 
interference with ground networks. Moreover, it would apply to voice 
calls on passenger-supplied cellular telephones and other passenger-
supplied mobile wireless devices, regardless of whether the call is 
made on a commercial mobile frequency, Wi-Fi, or other means. Under 
this proposal, the Department would not prohibit voice calls (although 
we seek further comment on that issue), but airlines would remain 
subject to any technical, safety, or security rules that do prohibit or 
restrict voice calls. Airlines would be required to disclose their 
voice call policies to the extent that they permit voice calls; those 
policies, in turn, will be based both on the airline's own choices and 
on any existing rules affecting such calls.

The OST's 2014 ANPRM

    The DOT sought comment in the February 2014 ANPRM on whether 
permitting voice calls on aircraft constitutes an unfair practice to 
consumers pursuant to 49 U.S.C. 41712, and/or is inconsistent with 
adequate air transportation pursuant to 49 U.S.C. 41702, and if so, 
whether such calls should be banned. More specifically, it solicited 
comment on a number of questions, including, but not limited to: (1) 
Whether the Department should refrain from rulemaking and allow the 
airlines to develop their own policies; (2) whether a voice call ban 
should apply to all mobile wireless devices; (3) whether any proposed 
ban on voice calls should be extended to foreign air carriers; and (4) 
whether exceptions should apply for emergencies, certain areas of the 
aircraft, certain types of flights, or certain individuals (such as 
flight attendants and air marshals). It did not seek comment on the 
technical or safety aspects of voice calls, because those fall under 
the regulatory authority of the FCC and the FAA, respectively.

Comments on the ANPRM

    The comment period was open from February 24, 2014, to March 26, 
2014. During that time, the Department received over 1,700 comments 
from individuals. The vast majority of commenters, 96%, favored a ban 
on voice calls. An additional 2% favored bans on voice calls, but 
indicated that they would be open to exceptions, such as for 
(unspecified) ``emergencies.'' Most commenters used strong language to 
express the view that voice calls in the presence of others are 
disturbing in general, and even more so in a confined space. 
Individuals also commented that voice calls would create ``air rage'' 
incidents by disgruntled passengers, place additional strains on flight 
attendants, and intrude upon privacy and opportunities to sleep. Only 
2% of individuals opposed a voice call ban. These commenters generally 
took the position that airlines should be able to set their own 
policies.
    Consumer advocacy organizations (Consumers Union and the Global 
Business Travel Association) stated that they favored a ban on voice 
calls, for the same reasons identified by the majority of individuals. 
Global Business Travel Association favored a ban on voice calls and 
stated that ``quiet sections'' are not feasible on aircraft.
    Unions (the Air Line Pilots Association (ALPA), the Association of 
Professional Flight Attendants (APFA), the Association of Flight 
Attendants--CWA (AFA-CWA), the Teamsters, and the Transportation Trades 
Department) expressed safety concerns arising from permitting voice 
calls on aircraft, including an increased number of ``air rage'' 
incidents and a decrease in the ability to hear crewmember 
instructions. These organizations also cited security concerns, such as 
the possibility that voice call capability could be exploited by 
terrorists.
    In contrast, the major airline organizations, Airlines for America 
(A4A) and the International Air Transport Association (IATA), expressed 
the view that airlines should be permitted to develop their own 
policies on voice calls. They recognized that their member airlines may 
take differing positions on whether they would allow voice calls on 
their flights. A4A and IATA stressed, however, that each airline should 
be free to respond to its own consumers' demand. They also argued that 
the Department lacks the statutory authority under 49 U.S.C. 41702 or 
41712 to ban voice calls. Finally, these organizations contended that a 
voice call ban would stifle innovation in this area.
    One U.S. airline, Spirit Airlines, Inc., echoed IATA's free-market 
position, but added that the Department would have the authority to 
require airlines to disclose their voice call policies.
    Certain foreign airlines (Emirates and Virgin Atlantic), along with 
suppliers of onboard voice call equipment (Panasonic, OnAir 
Switzerland, and the Telecommunications Industry Association/
Information Technology Industry Council), commented that foreign 
airlines increasingly permit voice calls, with few reports of consumer 
complaints. They stated that voice calls are rarely placed, and are of 
short duration because they are quite expensive (several dollars per 
minute, akin to ``roaming'' charges). They also note that voice calls 
may be easily disabled at any time during flight by one of the pilots. 
Finally, they report that crewmembers are adequately trained to handle 
any incidents that may arise as a result of voice calls.
    One commenter, the Business Travel Coalition, suggested that the 
Department should permit voice calls in an ``inbound, listen-only'' 
mode for participating passively in conference calls. Another 
commenter, GoGo, Inc., suggested that any ban on voice calls should 
apply to regularly-scheduled commercial flights, and not to private 
aircraft or charter flights.

Response to ANPRM Comments

    First, we recognize the safety and security concerns expressed by 
pilots' and flight attendants' unions. Without discounting those 
concerns in any way, we note that the proposed rule is not based on 
considerations of safety or security. Nevertheless the Department is 
actively coordinating this proposed rulemaking with all relevant 
Federal authorities that have jurisdiction over aviation safety and 
security.\16\
---------------------------------------------------------------------------

    \16\ In January 2016, the DOT and FCC entered into an agreement 
to establish a Federal Interagency Working Group to more effectively 
collaborate and coordinate with other relevant agencies on issues 
that intersect their respective domains, including the safe and 
secure use of consumer communications onboard domestic commercial 
aviation. This agreement builds on the interagency coordination 
efforts in recent years as aviation communications safety and 
security concerns have emerged. The FAA and the FCC co-chair the 
Working Group, with the Public Safety and Homeland Security Bureau 
coordinating efforts within the FCC. See http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0129/DA-16-110A1.pdf.
---------------------------------------------------------------------------

    Next, we understand the significant concerns expressed by 
individual commenters about the degree of hardship that may arise from 
an enclosed airline cabin environment in which voice calls are 
unrestricted. Under the proposed rule, airlines remain free to respond 
to those concerns by banning voice calls as a matter of policy, 
allowing voice calls only on certain flights (such as those frequently 
used by business travelers) or only

[[Page 90262]]

during certain portions of flights (such as non-sleeping hours), 
creating ``voice call free zones'' where voice calls are not permitted, 
or through other means. As we explain further below, permitting 
carriers to allow voice calls onboard aircraft may create an 
environment that is both unfair and deceptive to consumers, and 
inconsistent with adequate air transportation. The Department has the 
statutory authority to prohibit unfair and deceptive practices in air 
transportation, and to ensure adequate air transportation. As such, the 
Department disagrees with the airline organizations, which contend that 
the Department lacks statutory authority to ban voice calls under 
sections 41702 and 41712. The Department also disagrees with the 
individual commenters and airline organizations who contend that voice 
calls should be entirely unregulated.
    We recognize that certain foreign airlines permit voice calls when 
outside U.S. airspace, and that these airlines have reported few 
consumer complaints. This experience of foreign airlines suggests that 
voice calls do not, at present, create a significant degree of consumer 
harm. Our review of the individual comments to the ANPRM suggests, 
however, that U.S. consumers have come to expect a voice-call-free 
cabin environment and that they may generally hold a different view 
from foreign consumers on the issue of voice calls. Moreover, as we 
note in the regulatory evaluation to the proposed rule, the Department 
anticipates that airlines' technical capacity to allow voice calls will 
increase significantly in the near future, with corresponding potential 
reductions in the price of individual voice calls. These factors could 
result in an environment in which voice calls increase in both number 
and length, raising passenger discomfort to a degree that passengers on 
foreign airlines do not currently experience. As such, this proposal 
would require sellers of air transportation that are not small entities 
to provide adequate notice to passengers if voice calls are permitted 
on a ``flight within, to, or from the United States.'' We recognize 
that a ``flight to or from the United States'' may be a continuous 
journey including one flight segment beginning or ending in the United 
States (e.g., New York to Frankfurt), and a second segment between two 
foreign points (e.g., Frankfurt to Prague). We solicit comment on 
whether the disclosure requirements for ``flights to or from the United 
States'' should be limited to flight segments to or from the United 
States, or should apply to the entire continuous journey, in the same 
aircraft or using the same flight number, that begins or ends in the 
United States.
    The Department appreciates the comments we received from business 
travelers, some of whom have advocated for the ability to participate 
in ``listen-only'' calls, such as lengthy conference calls, on 
airplanes. This NPRM does not propose a ban on voice calls on aircraft, 
although we seek further comment on that issue. As a result, airlines 
would be free, under this proposal, to develop policies to prohibit, 
restrict or allow voice calls, and airlines would have the flexibility 
to provide these types of ``listen-only'' or other exceptions if they 
so choose. With that being said, DOT continues to seek comment on 
whether a ban on voice calls would be the more appropriate regulatory 
approach and whether any exceptions, such as a ``listen-only'' 
exception, should apply.
    With respect to GoGo's comment that any ban on voice calls should 
apply to regularly-scheduled commercial flights, and not to private 
aircraft or charter flights, we again note that we are not proposing to 
ban voice calls at this time.
    Finally, we agree with Spirit Airlines' comment that the Department 
has the authority to require carriers to disclose their voice-call 
policies, if the airline does allow them. While the major airline 
organizations did not comment on the disclosure approach, we believe 
that it is a well-established means of regulation that falls squarely 
within the Department's authority under 49 U.S.C. 41712. At this point 
in time, the Department is proposing this method of regulation, which 
is structured similarly to the Department's existing code-share 
disclosure rule. This proposed rule would require airlines that permit 
voice calls to provide early notice to consumers so that they may know 
prior to purchasing a ticket that a particular flight permits voice 
calls. This proposal provides a means of regulating voice calls without 
banning them outright.

Advisory Committee on Aviation Consumer Protection

    On October 29, 2014, the sixth meeting of the Secretary's Advisory 
Committee on Aviation Consumer Protection (ACACP) convened to discuss a 
number of issues, including regulation of voice calls on aircraft.\17\ 
At the meeting, representatives of DOT and FCC discussed the history 
and current status of voice call regulation. A representative from 
AeroMobile Communications, Inc., a company that installs communication 
systems onboard aircraft, noted that a number of foreign airlines offer 
voice call service, and asserted that passengers have experienced no 
adverse impacts from the service. A representative of the Association 
of Professional Flight Attendants expressed strong opposition to 
allowing voice calls, citing, among other concerns, safety, security, 
and adverse impacts on flight attendants who would have to intervene in 
passenger conflicts arising from voice calls. A representative of 
FlyersRights, a group representing airline passengers, expressed 
opposition to allowing voice calls, citing similar concerns and 
potential impacts on the passenger in-flight experience. An ACACP 
member representing consumer interests indicated that he was undecided 
on the issue and stated that there may be room for compromise. On 
September 1, 2015, the ACACP recommended that the Department allow 
airlines to decide whether to permit passengers to use mobile devices 
for voice calls, if such use is safe and secure. In a related 
recommendation, the ACACP urged the Department to continue to 
participate in the interagency task force relating to the safety and 
security of mobile wireless devices onboard aircraft. Our proposed 
rule, which would permit the sale of air transportation where voice 
calls are allowed so long as the airline's voice call policy is 
properly disclosed, is consistent with the ACACP's recommendation.
---------------------------------------------------------------------------

    \17\ DOT-OST-2012-0087-0257.
---------------------------------------------------------------------------

This NPRM

Legal Analysis

    After reviewing the comments, the Department finds that allowing 
the use of mobile wireless devices for voice calls without providing 
adequate notice to all passengers is an ``unfair'' and ``deceptive'' 
practice in air transportation under 49 U.S.C. 41712. A practice is 
unfair if it causes or is likely to cause substantial injury to 
consumers which cannot be reasonably avoided and which is not 
outweighed by countervailing benefits to consumers or competition that 
the practice produces. The Department relied upon 49 U.S.C. 41712 when 
promulgating the ``Tarmac Delay Rule'' (14 CFR 259.4), in which the 
Department addressed the harm to consumers when aircraft sit for hours 
on the airport tarmac without an opportunity for passengers to 
deplane.\18\ In doing so, the Department considered the degree of 
hardship and inconvenience to consumers, along with the fact that the 
harm was unavoidable because the passengers could not deplane. Similar 
to a tarmac delay

[[Page 90263]]

without an opportunity for passengers to deplane, permitting voice 
calls on aircraft without adequate notice would harm consumers because 
of the confined environment and the inability of passengers to avoid 
the hardship and disruption created by voice calls. The vast majority 
of individual commenters believe that permitting voice calls would 
create unavoidable harm. Most individuals spoke of the significant 
discomfort, invasion of privacy, lack of sleep, and other harmful 
effects that would arise from being placed for hours in an enclosed 
environment with other passengers speaking loudly on their mobile 
devices. Some commenters remarked that individuals speaking on mobile 
devices tend to be louder than individuals engaging in a live 
conversation. We are also aware of a 2012 survey indicating that 51% of 
respondents expressed negative feelings about cell phone use during 
flight, while 47% expressed generally positive feelings; in a separate 
survey question, 61% of respondents expressed support for restricting 
cell phone calls during flight.\19\ In light of the support for a voice 
call ban expressed by members of the public in response to the ANPRM, 
the Department believes that these hardships, when encountered without 
adequate notice, are not outweighed by countervailing benefits to 
consumers or to competition and are an unfair practice.
---------------------------------------------------------------------------

    \18\ See 74 FR 68983 (Dec. 30, 2009) and 76 FR 23110 (April 25, 
2011).
    \19\ These findings were part of a comprehensive survey to study 
airline passengers' usage of, and attitude toward, PEDs. The survey, 
conducted by the Airline Passenger Experience Association (APEX) and 
the Consumer Electronics Association (APEX), can be found at 
Appendix H to the September 30, 2013, final report of the Portable 
Electronic Devices Aviation Rulemaking Committee (PED ARC) to the 
Federal Aviation Administration. https://www.faa.gov/about/initiatives/ped/media/PED_ARC_FINAL_REPORT.pdf. The PED ARC 
reviewed, but did not commission, the survey. The PED ARC further 
found that 68% of commenters to its Federal Register notice ``did 
not desire cell phone usage (interpreted by the ARC to mean cell 
phone voice calls)'', while a different international survey found 
68% acceptance of onboard phone service. Id. at 4. The PED ARC 
ultimately declined to make recommendations to the FAA regarding 
voice call use, because this issue was outside the scope of the PED 
ARC charter. Id.
---------------------------------------------------------------------------

    We also believe that permitting voice calls on aircraft without 
adequate disclosure is a deceptive practice. A practice is deceptive if 
it misleads or is likely to mislead a consumer acting reasonably under 
the circumstances with respect to a material issue (i.e., one that is 
likely to affect the consumer's decision with regard to a product or 
service). As noted above, the Department is unaware of any U.S. carrier 
that permits voice calls on its flights; moreover, foreign carriers 
disable voice call capability within U.S. airspace. Thus, at present, 
consumers purchase tickets with the reasonable expectation that voice 
calls will not be permitted on flights within the United States. Given 
the overwhelmingly negative tenor of the public comments submitted to 
the docket, it is reasonable to conclude that consumers may choose a 
flight based at least in part on whether the carrier has taken the 
unusual step of permitting voice calls on that flight. Under these 
circumstances, we conclude that consumers would be unfairly surprised 
if they learned for the first time, after purchasing the ticket, that 
their chosen flight permits voice calls. The proposed requirements are 
designed to ensure that consumers are adequately informed, in advance, 
that voice calls will be permitted.
    A number of individuals and organizations expressed significant 
concern over the many safety and security issues that arise from 
permitting voice calls on aircraft. Recognizing the multi-
jurisdictional scope of the voice call issue, numerous members of 
Congress \20\ have urged the DOT to coordinate its efforts with the 
Department of Justice, the Department of Homeland Security, and the 
FCC. The proposed rule necessarily falls within the scope of the 
Department's consumer protection authority, and does not extend to 
certain security and safety concerns over which OST lacks jurisdiction. 
Nevertheless, commenters should be assured that the Department is 
engaged in active coordination with those agencies on this issue.
---------------------------------------------------------------------------

    \20\ Ex Parte Correspondence to Members of Congress, available 
at DOT-OST-2014-0002-1792. See also Explanatory Statement Submitted 
by Mr. Rodgers of Kentucky, Chairman of the House Committee on 
Appropriations Regarding the House Amendment to the Senate Amendment 
on H.R. 3547, Consolidated Appropriations Act of 2014, 160 Cong. 
Rec. H475, H512-13, H906, H927 (daily ed. Jan. 15, 2014).
---------------------------------------------------------------------------

    Before discussing the proposed rule text, we note that we seek 
further comment on whether the Department should ban voice calls on 
domestic and/or international flights. We recognize that we have 
already received considerable feedback on this topic during the comment 
period to the ANPRM; individuals and organizations need not re-submit 
those same comments during the comment period to this NPRM. Here, we 
particularly solicit comment on whether there is any market failure or 
other reason to support a Federal ban on voice calls during flights, as 
well as the costs and benefits of any such ban. For example, is there 
evidence of a market failure or other problems based on the experience 
of countries that permit carriers to allow passengers to make voice 
calls during flights? What are the different types of policies and 
practices being used by carriers that permit some degree of voice 
calls? Will the price of voice calls go down as technology improves, 
and if so, will the volume of voice calls increase? What would be the 
costs and benefits of any such increase in voice call usage? What are 
the quantifiable benefits to consumers from being able to make a voice 
call onboard an aircraft? What are the quantifiable benefits of being 
able to listen to a conference call on a ``listen-only'' call? Would 
carriers and/or consumers benefit from airlines offering either ``voice 
call zones'' or ``voice call free zones'' onboard aircraft? Would 
carriers charge a specific fee for being able to make voice calls, or 
would the fee for voice calls be bundled with the general charges for 
Wi-Fi, and/or in-flight entertainment? Would carriers have an economic 
incentive to provide electronic devices to passengers independent of 
the portable electronic devices that passengers themselves already 
bring onboard the aircraft? What are the quantifiable costs to 
consumers from being exposed to unwanted voice calls onboard aircraft? 
What is the proper method of measuring such costs? Is a voice call ban 
justified even if the Department requires disclosure of a carrier's 
voice call policy? Should any such ban apply to international as well 
as domestic flights? Should any such ban apply to small carriers, air 
taxis, or charter operations? In general, are market forces sufficient 
or insufficient to moderate voice call use without Departmental 
regulation? Are there alternative regulatory approaches, in addition to 
disclosure and bans, that the Department should consider?

Discussion of Proposed Rule Text

    In the NPRM, we define ``mobile wireless device'' to mean any 
portable wireless telecommunications device not provided by the covered 
airline that is used for the transmission or reception of voice calls. 
The term includes, but is not limited to, passengers' cellular 
telephones, computers, tablets, and other portable electronic devices 
using radio frequency (RF) signals, including Voice over Internet 
Protocol (VoIP) via aircraft Wi-Fi. We define ``voice call'' to mean an 
oral communication made or received by a passenger using a mobile 
wireless device. The Department seeks comment on the proposed 
definitions of ``mobile wireless device'' and ``voice call.''
    The proposed rule applies to passenger flights in scheduled or 
charter air transportation by U.S. and foreign air carriers that are 
not small entities (i.e.,

[[Page 90264]]

U.S. and foreign air carriers that provide air transportation only with 
aircraft having a designed seating capacity of less than 60 seats). We 
solicit comment on whether and to what extent the proposed rule should 
or should not apply to small aircraft, commuter carrier flights, 
single-entity charter flights, air ambulances, and on-demand air taxi 
operations.
    Under this proposed rule, if an airline permits voice calls on a 
specific flight that is offered to a prospective consumer, then the 
seller of the air transportation (e.g., an airline or ticket agent) 
would be required to disclose that fact contemporaneously with the 
offer. The purpose of such a disclosure requirement would be to give 
consumers the opportunity to learn in advance that they are considering 
a flight on which voice calls are permitted. This option would apply to 
schedule listings and oral communications with prospective consumers by 
U.S. and foreign air carriers except for those that provide air 
transportation only with aircraft having a designed seating capacity of 
less than 60 seats, and to ticket agents except for those that qualify 
as a small business pursuant to 13 CFR part 121.\21\ Bearing in mind 
the Department's responsibilities under the Regulatory Flexibility Act, 
the Department is of the tentative view that this exception is 
appropriate in order to avoid undue administrative burdens on small 
businesses and small carriers. We solicit comment on whether the 
requirement to provide advance notice that voice calls are permitted on 
flight should apply to all airlines and ticket agents regardless of 
size.\22\
---------------------------------------------------------------------------

    \21\ Currently, ticket agents qualify as a small business if 
they have $20.5 million or less in annual revenues. 13 CFR 121.201 
(effective January 7, 2013).
    \22\ We note that the code-share disclosure rule, 14 CFR part 
257, on which this rule is based, contains no exceptions for small 
businesses and small carriers. Thus, carriers and ticket agents of 
any size that hold out or sell air transportation involving a code-
sharing arrangement must provide adequate advance notice of the 
code-sharing arrangement.
---------------------------------------------------------------------------

    The proposed rule is modeled on the code-share disclosure rule, 14 
CFR 257.5. Code-sharing is an arrangement whereby a flight is operated 
by a carrier other than the airline whose designator code or identity 
is used in schedules and on tickets. Based on the statutory prohibition 
against unfair and deceptive practices in the sale of air 
transportation, 49 U.S.C. 41712, the purpose of the disclosure 
requirement in section 257.5 is to ensure that consumers are aware of 
the identity of the airline actually operating their flight in code-
sharing and long-term wet lease arrangements in domestic and 
international air transportation. See 64 FR 12838 (March 15, 1999). 
Code-share disclosure is important because the identity of the 
operating carrier is a factor that affects many consumers' purchasing 
decisions.
    Similarly, the Department believes that a carrier's voice call 
policy is an important factor that may affect consumers' purchasing 
decisions. Prospective consumers should be aware, from the beginning of 
a prospective purchase, whether a carrier permits voice calls on its 
flights. As noted above, the comments to the ANPRM reflected an 
overwhelmingly negative public reaction to the prospect of permitting 
voice calls on aircraft. Based on these comments, the Department 
believes that consumers should be informed, from the beginning of the 
process, whether a carrier permits voice calls. Similarly, the 
Department believes that consumers would be unfairly surprised and 
harmed if they learned only after the purchase of a ticket (or, worse, 
after boarding the aircraft) that the carrier permits voice calls on 
its flights. While some carriers or ticket agents may voluntarily or 
sporadically provide notice of a carrier's voice call policy in the 
absence of regulation, the Department believes that the systematic and 
comprehensive notice requirements of proposed Part 260 provide the most 
effective means of avoiding consumer harm.
    The Department proposes that disclosure take place under Part 260 
only if the carrier permits voice calls; if the carrier chooses to ban 
such calls, then no disclosure of that fact would be required. The 
Department reasons that at present, passengers are generally not 
permitted to make or receive voice calls (whether because of the FCC's 
rule or otherwise). In other words, the commonly understood status quo 
is that voice calls are not permitted onboard flights. The Department 
does not believe it is necessary for carriers to notify the public if 
they will follow that status quo.
    As proposed, the rule would exempt carriers that operate 
exclusively with aircraft having a designed seating capacity of less 
than 60 seats and ticket agents defined as ``small businesses'' (i.e., 
ticket agents with $20.5 million or less in annual revenues, or that 
qualify as a small business pursuant to 13 CFR part 121). We note that 
large ticket agents and tour operators that account for a significant 
portion (more than 60%) of industry revenue would be covered, as would 
the vast majority of flights booked directly with airlines. The 
Department seeks comment on whether to apply a notice rule to small 
businesses, and particularly seeks comments on the costs and benefits 
of doing so.
    The specific notice requirements are set forth in section 260.9. 
Section 260.9 requires disclosure in two areas: flight itinerary and 
schedule displays, and oral communications.\23\ We will briefly address 
each subsection in turn.
---------------------------------------------------------------------------

    \23\ The code-share disclosure rule also requires written 
disclosure to consumers at the time of the purchase, and disclosure 
in written advertisements distributed in or mailed to or from the 
United States (including those that appear on internet Web sites). 
This proposed voice-call disclosure rule contains no such 
requirements. We solicit comment as to whether these additional 
disclosures should be required, and the scope thereof.
---------------------------------------------------------------------------

(a) Flight Itinerary and Schedule Displays
    Subsection (a) would require voice call disclosure on flight 
itinerary and schedule displays, including on the Web sites and mobile 
applications of both carriers and ticket agents with respect to flights 
in, to, or from the United States. The inclusion of ticket agents 
reflects the fact that, through the growth and development of the 
internet and related technologies, more and more ticket agents, 
especially online travel agencies (OTAs), are able to provide flight 
schedules and itinerary search functions to the public. Also, we view 
any ticket agent that markets and is compensated for the sale of air 
transportation to consumers in the United States, either from a brick-
and-mortar office located in the United States or via an internet Web 
site that is marketed towards consumers in the United States, as 
``doing business in the United States.'' This interpretation would 
cover any travel agent or ticket agent that does not have a physical 
presence in the United States but has a Web site that is marketed to 
consumers in the United States for purchasing tickets for flights 
within, to, or from the United States. We also note that with the usage 
of mobile devices gaining popularity among consumers, our voice call 
disclosure requirement with respect to flight schedule and itinerary 
displays covers not only conventional internet Web sites under the 
control of carriers and ticket agents, but also those Web sites and 
applications specifically designed for mobile devices, such as mobile 
phones and tablets.
    Furthermore, the text of section 260.9(a) states that voice call 
policies (i.e., carrier policies where voice calls are permitted) must 
be disclosed in flight schedules provided to the public in the United 
States, which include electronic schedules on Web sites

[[Page 90265]]

marketed to the public in the United States, by an asterisk or other 
easily identifiable mark. For schedules posted on a Web site in 
response to an itinerary search, disclosure through a rollover, pop-up 
window, or hyperlink is not sufficient. Moreover, as stated in the 
rationale behind our recently amended price advertising rule, 14 CFR 
399.84, which ended the practice of permitting sellers of air 
transportation to disclose additional airfare taxes and mandatory fees 
through rollovers and pop-up windows, we believe that the extra step a 
consumer must take by clicking on a hyperlink or using a rollover to 
find out about voice call policies is cumbersome and may cause some 
consumers to miss this important disclosure.
    Our proposal reflects the requirement of 49 U.S.C. 41712(c)(2) on 
Internet offers, which requires that on a Web site fare/schedule search 
engine, code-share disclosure must appear on the first display 
following an itinerary search. Further, section 41712(c)(2) requires 
that the disclosure on a Web site must be ``in a format that is easily 
visible to a viewer.'' Similarly, we are proposing that the voice call 
policy disclosure must appear in text format immediately adjacent to 
each flight where voice calls are permitted, in response to an 
itinerary request by a consumer. We ask whether the proposed voice-call 
disclosure format would be clear and prominent to the passenger. As an 
alternative to the proposed standard, we ask whether a voice call 
disclosure appearing immediately adjacent to the entire itinerary as 
opposed to appearing immediately adjacent to each flight would be clear 
and prominent to the passenger. We also ask whether a symbol, such a 
picture of cell phone, would be sufficient, rather than disclosure in 
text format.
    With regard to flight schedules provided to the public (whether the 
schedules are in paper or electronic format), we propose that the voice 
call disclosure be provided by an asterisk or other identifiable mark 
that clearly indicates the existence of a voice call policy and directs 
the reader's attention to another prominent location on the same page 
indicating in words that the carrier permits voice calls. We seek 
public comment on whether we should impose the same standard for flight 
schedules as for flight itineraries provided on the internet in 
response to an itinerary search, i.e., requiring that the disclosure be 
provided immediately adjacent to each applicable flight.
(b) Disclosure to Prospective Consumers in Oral Communications
    Proposed section 260.9(b) requires that in any direct oral 
communication in the United States with a prospective consumer, and in 
any telephone call placed from the United States by a prospective 
consumer, concerning a flight within, to, or from the United States 
where voice calls are permitted, a ticket agent doing business in the 
United States or a carrier shall inform the consumer, the first time 
that such a flight is offered to the consumer, that voice calls are 
permitted. This rule requires carriers and ticket agents to disclose 
the voice call policy the first time the carrier or ticket agent offers 
a flight where voice calls are allowed, or, if no such offer was made, 
the first time a consumer inquires about such a flight. As with the 
remaining subsections of section 260.9, the purpose of this subsection 
is to ensure that a prospective consumer understands that voice calls 
would be permitted on a flight from the beginning of the decisionmaking 
process, and regardless of whether the consumer ultimately makes a 
reservation. Because carriers are already required to provide code-
share disclosure, the Department believes that there is only a small 
additional burden to requiring disclosure of voice call policies as 
well. Subsection (b) requires disclosure only the first time that such 
a flight is offered to the consumer; the agent need not repeat the 
voice call policy at every mention of the flight, but should be 
prepared to repeat the voice call disclosure information upon request. 
The rule also requires disclosure if no such offer was made, the first 
time a consumer inquires about such a flight.
    The phrase ``ticket agent doing business in the United States'' is 
used in the same manner as described in the discussion of that phrase 
in section 260.9(a) above. Consequently, a ticket agent that sells air 
transportation via a Web site marketed toward U.S. consumers (or that 
distributes other marketing material in the United States) is covered 
by section 260.9(b) even if the agent does not have a physical location 
in the United States, and such an agent must provide the disclosure 
required by section 260.9(b) during a telephone call placed from the 
United States even if the call is to the agent's foreign location.
    While the Department has proposed a disclosure that is based on the 
code-share disclosure model, we seek comment on other approaches, 
including whether and to what extent it should require disclosure of 
voice call policies to consumers. For example, should the Department 
require airlines that permit voice calls on aircraft to disclose that 
fact on their general Web site, outside of the booking path? What 
information may need to be moved or deleted to make room for this 
disclosure? Should ticket agents be required to identify airlines that 
permit voice calls and disclose that information on their Web site? If 
so, where on the Web site should such disclosure appear? Would a 
general link to a policy be sufficient, or should disclosure take place 
on the screen where passengers construct itineraries and/or purchase 
tickets? Should disclosure take place during telephone reservation and 
inquiry calls? At all points of sale? Should such disclosure be 
provided on itinerary or e-ticket documents? If a passenger wishes to 
learn the full extent of a carrier's voice call policy, beyond the mere 
disclosure that calls ``are permitted,'' should carriers or ticket 
agents be required to provide that information on request? If so, how? 
The Department specifically seeks comments on the costs and benefits of 
all of these approaches.

Effective Date

    The Department proposes that the rule becomes effective 30 days 
after publication in the Federal Register. We do not anticipate 
significant concerns with a 30-day effective date; this proposed rule 
does not require airlines to adopt or alter voice call policies within 
a specific time frame. Rather, airlines would be permitted to allow 
voice calls onboard aircraft \24\ so long as the airline and its ticket 
agents properly disclose the airline's voice call policies. To the 
extent that airlines choose not to permit voice calls, they would not 
be affected by the 30-day effective date. We seek comment on the costs 
and benefits of a 30-day effective date.
---------------------------------------------------------------------------

    \24\ We again stress that DOT's qualified permission of voice 
calls under this proposed rule would not trump any bans on voice 
calls issued by other federal agencies. Thus, for example, if the 
FCC continues to prohibit the use of certain commercial mobile 
spectrum bands, that prohibition would apply even if the DOT adopts 
this proposed rule.
---------------------------------------------------------------------------

Regulatory Analyses and 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. A copy of the Preliminary Regulatory Impact Analysis 
(PRIA) has been placed in the docket.

[[Page 90266]]

    The PRIA found qualitative consumer benefits in the form of having 
readily-available flight-specific information regarding a carrier's 
voice call policy before making air travel purchase decisions. The PRIA 
did not quantify this benefit. The PRIA estimated aggregate costs for 
compliance with the proposed rule for 2017-2026 (including costs for 
revising Web sites and for training personnel) to be $41 million for 
carriers and $46 million for ticket agents. A summary of these findings 
is set forth below.

                                          Summary of Benefits and Costs
----------------------------------------------------------------------------------------------------------------
                                                         Quantitative                            Quantitative
         Proposed option          Nature of benefits        measure         Nature of costs         measure
----------------------------------------------------------------------------------------------------------------
Require disclosure of possible    Improved            Tickets purchased   Web site            Carrier costs of
 voice call exposure prior to      information for     for 10.2 billion    programming and     $41 million and
 ticket purchase.                  those who wish to   enplanements,       call center labor   ticket agent
                                   avoid (or make)     2017-2026.          hours for large     costs of $46
                                   voice calls.                            carriers, ticket    million, 2017-
                                                                           agents.             2026.
----------------------------------------------------------------------------------------------------------------

B. 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. 
DOT defines small carriers based on the standard published in 14 CFR 
399.73 as carriers that provide air transportation exclusively with 
aircraft that seat no more than 60 passengers. Ticket agents qualify as 
a small business if they have $20.5 million or less in annual revenues. 
13 CFR 121.201.
    The Department does not expect this rule to have a significant 
economic impact on a substantial number of small entities. The proposed 
rule contains an exemption for small carriers and small ticket agents. 
On the basis of the analysis provided in the PRIA and IRFA, I hereby 
certify that this rulemaking will not have a significant economic 
impact on a substantial number of small entities.

C. Executive Order 13132 (Federalism)

    This rulemaking has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
rulemaking does not include any provision that: (1) Has substantial 
direct effects on the States, the relationship between the national 
government and the States, or the distribution of power and 
responsibility 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.

D. Executive Order 13084

    This rulemaking has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this rulemaking 
does not 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.

E. Paperwork Reduction Act

    The Department has determined that this proposed rule is subject to 
the requirements of the Paperwork Reduction Act (PRA) because it adopts 
new information gathering requirements on airlines and ticket agents. 
The Department will publish a separate 30 day and 60 day notice in the 
Federal Register inviting comment on the new information collection 
requirements contained in this document. As prescribed by the PRA, the 
requirements will not go into effect until the Office of Management and 
Budget (OMB) has approved them and the Department has published a 
notice announcing the effective date of the information collection 
requirements.

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 rule.

G. National Environmental Policy Act

    The Department has analyzed the environmental impacts of this 
proposed action pursuant to the National Environmental Policy Act of 
1969 (NEPA) (42 U.S.C. 4321 et seq.) and has determined that it is 
categorically excluded pursuant to DOT Order 5610.1C, Procedures for 
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). 
Categorical exclusions are actions identified in an agency's NEPA 
implementing procedures that do not normally have a significant impact 
on the environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS). See 40 CFR 
1508.4. In analyzing the applicability of a categorical exclusion, the 
agency must also consider whether extraordinary circumstances are 
present that would warrant the preparation of an EA or EIS. Id. 
Paragraph 3.c.6.i of DOT Order 5610.1C categorically excludes 
``[a]ctions relating to consumer protection, including regulations.'' 
As noted above, this rulemaking relates to consumer protection. The 
Department does not anticipate any environmental impacts, and there are 
no extraordinary circumstances present in connection with this 
rulemaking.

List of Subjects in 14 CFR Part 260

    Air carriers, Foreign air carriers, Ticket agents, Voice calls, 
Mobile wireless devices, Consumer protection. Disclosure when voice 
calls are permitted.

Proposed Rule Text

0
For the reasons set forth in the preamble, the Department of 
Transportation proposes to amend title 14 of the Code of Federal 
Regulations by adding part 260 to read as follows:

Part 260--DISCLOSURE ABOUT VOICE CALLS ONBOARD AIRCRAFT

Sec.
260.1 Purpose.
260.3 Applicability.
260.5 Definitions.
260.7 Unfair and Deceptive Practice.
260.9 Notice Requirement.
260.11 Exceptions.

    Authority: 49 U.S.C. 41712.


Sec.  260.1  Purpose.

    The purpose of this part is to ensure that ticket agents doing 
business in the United States, air carriers, and foreign air carriers 
inform consumers clearly when the air transportation they are buying or 
considering buying permits passengers to use their mobile wireless 
devices for voice calls onboard the flight.

[[Page 90267]]

Sec.  260.3  Applicability.

    Except as noted in Sec.  260.11, this part applies to the 
following:
    (a) U.S. and foreign air carriers marketing scheduled or charter 
air transportation where voice calls are permitted onboard flights; and
    (b) Ticket agents doing business in the United States that market 
scheduled or charter air transportation where voice calls are permitted 
onboard flights.


Sec.  260.5  Definitions.

    As used in this part:
    Air transportation means foreign air transportation or intrastate 
or interstate air transportation.
    Carrier means any air carrier or foreign air carrier as defined in 
49 U.S.C. 40102(a)(2) or 49 U.S.C. 40102(a)(21), respectively, that is 
marketing scheduled or charter passenger air transportation.
    Mobile wireless device means any portable wireless 
telecommunications device not provided by the covered carrier that is 
used for the transmission or reception of voice calls. The term 
includes, but is not limited to, passenger cellular telephones, 
computers, tablets, and other portable electronic devices using radio 
signals or Voice over Internet Protocol.
    Ticket agent has the meaning ascribed to it in 49 U.S.C. 
40102(a)(45), and DOT regulations.
    Voice call means an oral communication made or received by a 
passenger using a mobile wireless device.


Sec.  260.7  Unfair and deceptive practice.

    The holding out or sale of scheduled or charter passenger air 
transportation is prohibited as unfair and deceptive in violation of 49 
U.S.C. 41712 unless, in conjunction with such holding out or sale, 
carriers and ticket agents follow the requirements of this part.


Sec.  260.9  Notice requirement.

    (a) Notice in flight itineraries and schedules. Each air carrier, 
foreign air carrier, or ticket agent providing flight itineraries and/
or schedules for scheduled or charter passenger air transportation to 
the public in the United States shall ensure that each flight within, 
to, or from the United States on which voice calls are permitted is 
clearly and prominently identified and contains the following 
disclosures.
    (1) In flight schedule information provided to U.S. consumers on 
desktop browser-based or mobile browser-based internet Web sites or 
applications in response to any requested itinerary search, for each 
flight on which voice calls are permitted, notice that voice calls are 
permitted must appear prominently in text format on the first display 
following the input of a search query, immediately adjacent to each 
flight in that search-results list. Roll-over, pop-up and linked 
disclosures do not comply with this paragraph.
    (2) For static written schedules, each flight in passenger air 
transportation where voice calls are permitted shall be identified by 
an asterisk or other easily identifiable mark that leads to disclosure 
of notification that voice calls are permitted.
    (b) Notice in oral communications with prospective consumers. In 
any direct oral communication in the United States with a prospective 
consumer, and in any telephone call placed from the United States by a 
prospective consumer, concerning a flight within, to, or from the 
United States where voice calls are permitted, a ticket agent doing 
business in the United States or a carrier shall inform the consumer, 
the first time that such a flight is offered to the consumer, or, if no 
such offer was made, the first time a consumer inquires about such a 
flight, that voice calls are permitted.
    (c) Each air carrier and foreign air carrier that permits voice 
calls via passenger devices shall provide notification to all ticket 
agents that receive and distribute the U.S. or foreign carrier's fare, 
schedule, and availability information of the fact that voice calls via 
passenger devices are permitted during the flight. This notification 
shall be useable, current, and accurate, and suitable for providing the 
notices to prospective air travelers required by paragraphs (a) and (b) 
of this section.


Sec.  260.11  Exceptions.

    This Part does not apply to:
    (a) Air carriers or foreign air carriers providing air 
transportation only with aircraft having a designed passenger capacity 
of less than 60 seats.
    (b) Ticket agents with $20.5 million or less in annual revenues, or 
that qualify as a small business pursuant to 13 CFR part 121.

    Issued in Washington, DC, on December 7, 2016.
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2016-29830 Filed 12-13-16; 8:45 am]
 BILLING CODE 4910-9X-P


