Wheeler, FCC Seen as Unlikely to Quash NPRM on In-Flight Cellphone Use, Despite Backlash
Sen. Lamar Alexander, R-Tenn., said Tuesday he was considering a bill that would stop an FCC NPRM that would propose to give airlines leeway to allow in-flight use of cellphones for text, data and voice. (See separate report below in this issue.) The backlash from Congress, some in the airline industry and members of the public began last week when the FCC said it would vote on the NPRM at its Dec. 12 meeting. Chairman Tom Wheeler has since said the NPRM would allow further in-flight cellphone use but wouldn’t mandate it, leaving the decision with the airlines (CD Nov 25 p1). Former FCC officials and communications industry groups tell us they believe the agency is justified in pursuing a possible rule change given recent technological advances -- and that Wheeler and the FCC shouldn’t remove the NPRM from its agenda because of recent public criticism. They also say Wheeler won’t likely back down.
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Wheeler’s decision to press for a possible rule change is “courageous,” and there’s no reason to believe he would not pursue the rule change past the Dec. 12 meeting, said ex-Commissioner Robert McDowell, now at the Hudson Institute. As long as the pending NPRM is “well rooted in a factual foundation, it would be a mistake for the FCC to pull back,” he said. “This is an issue that has been examined for years. The issues aren’t new and there’s been a lot of study over the course of a decade. Pulling back because of strongly worded letters or press releases would not set a good precedent."
The FCC is unlikely to take the NPRM “off the agenda just because there was some backlash,” said Public Knowledge Senior Vice President Harold Feld. “It wouldn’t surprise me if they took it all the way through and then handed it off to the [Federal Aviation Administration]. This is in some ways exactly the kind of flash-in-the-pan political noise that you would hope this chairman ignores.” A postponement of the NPRM because of the backlash “just invites people to try to push you around,” Feld said. “I don’t think you really want to pull back on this. On the one hand, you could defend it as not being a big deal, except of course to the people who were trying to sell this new system. But on the other hand you would have to ask ‘if you spook this easily, then how do you expect to get anything that’s really controversial done?'” The Telecommunications Industry Association is “hopeful that the FCC will move forward as it has said it intends to,” said Brian Scarpelli, TIA senior manager-government affairs. “We don’t see any technical reason why they should not continue this NPRM."
The FCC has made clear it’s examining the rule based on recent technological changes that would make expanded in-flight cellphone use safer -- and that is the right path for the agency to pursue, McDowell said. “Let’s let science drive the decision,” he said. “The great thing about engineering debates is that science is the ultimate arbiter -- either there is harmful interference to cockpit equipment or there isn’t. That shouldn’t be a political decision.” The FCC is right to let the airlines “determine for themselves whether they want to allow these services on their planes,” he said. “That should be a business decision between the airlines and consumers, not something that government is artificially holding back from the marketplace.” The FCC had no comment.
"Overwhelming proof” of the safety of in-flight cellphone use should remain the FCC’s primary concern in examining a possible rule change, said former acting Chairman Michael Copps. “That’s the underlying question I would need to have 100 percent confidence in before I would even entertain any of the other notions if I was on the commission today,” he said. “I'd need to be sure this stuff is safe and doesn’t interfere with the central tools of navigation when you're flying at 30,000 feet."
Wheeler is “completely right that the FCC is supposed to be an expert agency that provides expert advice as to a variety of issues, some of which are deeply rooted in technology,” said former FCC Chief of Staff Blair Levin, an Aspen Institute fellow and president of Gig.U. “The question of whether talking on an airplane should be allowed is one that either Congress or the companies themselves should determine, not the FCC.” Critics of the FCC’s past actions have characterized the NPRM as another overreach, but if the public better understood the agency’s role, “they would agree that the technical analysis is appropriate,” Levin said.
Regardless of what the FCC has done previously, it’s completely proper for the agency to render a technical judgment in its NPRM, said Free State Foundation President Randolph May. Once the FCC provides that technical opinion, it “ought to be up to the airlines to decide what to do,” May said. “From a free market-oriented perspective, this is just not a subject on which the FCC needs to have the definitive word. I'd want that side of it worked out by other agencies or the airlines."
TIA believes it’s important for the FCC “to examine opportunities to remove regulations that stand in the way of innovation,” Scarpelli said. “Their piece of the pie in this argument is not to debate whether people should or should not be having voice calls on cellphones. It’s to provide technical input -- harmonizing the allowance of newer technologies on airplanes that are consistent with the rest of the world.” The FAA and the airlines will “need to make a policy decision for themselves,” he said. TIA has supported past FCC efforts to increase access to broadband on airplanes, and fully supported the FAA’s own efforts to relax its rules on the use of portable electronic devices in flight, Scarpelli said. The FAA said in late October that airlines could begin relaxing rules restricting the use of non-connected portable electronic devices such as iPads and Kindles (CD Nov 1 p1).