The Brouhaha Concerning the FCC’s In-Flight Cellphone Proposal Is Misplaced

Published December 12, 2013

Thursday, the FCC considered issuing a proposal that seeks comment on the Commission’s rules regarding the use of mobile wireless services on board aircraft. In my view, the proposal to seek public comment should be adopted.

As reported in today’s Washington Post, the announcement by the FCC’s new Chairman a couple of weeks ago that the agency would issue the notice seeking comment on a rule change that might lead to in-flight cellphone use has drawn a lot of public attention, both positive and negative. This is not surprising given the strong feelings of consumers concerning the use of cellphones in flight. Some consumers reacted positively to the prospect of allowing in-flight calls and wireless services, while others criticized the idea.

Those who interpreted the FCC’s announcement as permitting passengers to make voice calls in-flight should relax. The so-called Notice of Proposed Rulemaking will not itself allow in-flight calls. The NPRM will merely seek public comment on proposed revisions to the Commission’s rules to begin the process of considering whether any changes in the on-board wireless device use policies are warranted. The NPRM likely will also announce the Commission’s tentative decision to give airlines discretion to determine whether and how to provide and manage on-board wireless services, given the FCC’s determination that “there is no technical reason” to prohibit on-board use of mobile devices.

If it is true, and I await public comment on the issue, that there is no technical reason from a spectrum management or spectrum interference point of view for the FCC to prohibit on-board wireless use, then, from my free market-oriented perspective, giving airlines discretion to determine policies governing in-flight wireless services is an appropriate way to approach the issue. The FCC has technical expertise regarding resolving concerns about spectrum interference issues, and it is appropriate for the agency to address those concerns utilizing its expertise. But, at the same time, absent any concerns that on-board wireless use poses spectrum interference issues that compromise airline safety, I don’t see it as the FCC’s role to dictate how the airlines run their operations with respect to passenger conduct.

If the FAA believes that the in-flight use of cellphones may compromise the safety of airline operations because cellphone use is likely to cause disruptions due to unruly passenger fights, the FAA may well have a role to play. Perhaps other federal agencies may have a role to play as well. And, most importantly, as I understand it, nothing in the FCC’s proposed rule would require airlines to allow in-flight cellphone use. That decision would be left to the airlines themselves based on their own perceptions concerning the demands of consumers in the air travel marketplace.

When the FCC’s new Chairman, Tom Wheeler, announced a few weeks ago that the FCC would be considering this change, he said: “I do not want the person in the seat next to me yapping…But we are not the Federal Courtesy Commission.” I agree with Mr. Wheeler on both counts.

At the end of the day, I personally hope the airlines don’t allow in-flight cellphone use, or at least certainly not in an unrestricted way that is likely to cause widespread passenger irritation. But, at the same time, as someone who has argued for a very long time that the FCC over-regulates and meddles in matters that ought to be left to the judgment of those businesses it regulates, sometimes to the point of counterproductive micro-management, I am with Mr. Wheeler on this one.
There will be time enough to be critical when the new Chairman proposes new regulatory measures that shouldn’t be adopted. This is a deregulatory one that at least should be considered.
[Originally published on The Free State Foundation]