By this Notice, we propose to harmonize our rules, and allow airlines to provide mobile communications services on aircraft equipped with Airborne Access Systems at altitudes above 3,048 meters (10,000 feet), consistent with appropriate technical rules. If adopted, these proposals would facilitate the use of mobile data services onboard aircraft, to the benefit of air travelers in a way that would not cause harmful interference to terrestrial networks.
Pursuant to sections 1.415 and 1.419 of the Commission’s rules, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to firstname.lastname@example.org or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
For additional information on this proceeding, please contact Amanda Krohn Huetinck of the Wireless Telecommunications Bureau at Amanda.Krohn@fcc.gov.
Ex Parte Rules
The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b). In proceedings governed by section 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act,1 the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this Notice. The IRFA is set forth in Appendix B. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the Notice, and they should have a separate and distinct heading designating them as responses to the IRFA. The Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration, in accordance with the Regulatory Flexibility Act.2
Paperwork Reduction Act of 1995
This NPRM seeks comment on a potential new or revised information collection requirement. If the Commission adopts any new or revised information collection requirement, the Commission will publish a notice in the Federal Register inviting the public to comment on the requirement, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
Accordingly, IT IS ORDERED THAT, pursuant to the authority contained in sections 1, 4(i), 11, 303(r), 303(y), 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 161, 303(r), 303(y), 308, 309, and 332, this NOTICE OF PROPOSED RULEMAKING is hereby ADOPTED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Part 22 of Title 47 of the Code of Federal Regulations is amended as follows:
The authority citation for Part 22 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 222, 303, 309, and 332.
Section 22.925 is revised to read as follows:
§ 22.925 Airborne Operation of Mobile Devices
Devices using frequencies licensed under this subpart are prohibited from operating onboard airborne aircraft except as authorized by § 87.205, et seq.
Part 24 of Title 47 of the Code of Federal Regulations is amended as follows: The authority citation for Part 24 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 309, and 332.
Section 24.3 is revised to read as follows:
§ 24.3 Permissible Communications
PCS licensees may provide any mobile communications service on their assigned spectrum. Fixed services may be provided on a co-primary basis with mobile operations. Broadcasting as defined in the Communications Act is prohibited. Devices using frequencies licensed under this rule part are prohibited from operating onboard airborne aircraft except as authorized by § 87.205, et seq.
Part 27 of Title 47 of the Code of Federal Regulations is amended as follows: The authority citation for Part 27 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless otherwise noted.
Section 27.2 is revised to read as follows:
§ 27.2 Permissible Communications
(a) Miscellaneous wireless communications services. Except as provided in paragraph (b), (d), or (e) of this section and subject to technical and other rules contained in this part, a licensee in the frequency bands specified in § 27.5 may provide any services for which its frequency bands are allocated, as set forth in the non-Federal Government column of the Table of Allocations in § 2.106 of this chapter (column 5).
(e) Devices using frequencies licensed under this rule part are prohibited from operating onboard airborne aircraft except as authorized by § 87.205, et seq.
Part 87 of Title 47 of the Code of Federal Regulations is amended as follows: The authority citation for Part 87 continues to read as follows:
AUTHORITY: 47 U.S.C. 154, 303 and 307 (e) unless otherwise noted.
New sections 87.205-207 are added to read as follows
AIRBORNE MOBILE SERVICE
§ 87.205 Scope of Service Aircraft Station Licensees shall be permitted to provide mobile broadband service under this rule part subject to the following conditions:
mobile broadband services shall be authorized only within aircraft cabins;
mobile broadband service shall be authorized only over the frequencies designated in section 87.206;
Aircraft station licensees must utilize an airborne access system that complies with the technical rules set forth in section 87.207.
The Airborne Mobile Service shall be authorized only at altitudes above 3,048 meters (~10,000) feet. No transmissions shall be authorized over designated frequencies below this altitude.
§ 87.206 Frequencies The frequencies 698-757 MHz, 775-787 MHz, SMR spectrum within the bands (806-821 MHz, 851-866 MHz, 896-901 MHz, and 935-940 MHz), 824-849 MHz, 869-894 MHz, 1850-1915 MHz, 1930-1995 MHz, 1710-1755 MHz, 2000-2020 MHz, 2110-2155 MHz, 2180-2200 MHz, 2305-2320 MHz, and 2345-2360 MHz are authorized for airborne in-cabin use consistent with the requirements and 87.205, et seq.
§ 87.207 Technical Requirements Airborne access systems on licensed aircraft must:
utilize only frequencies authorized in section 87.206 for the provision of Airborne Mobile Service;
manage all in-cabin transmissions from mobile devices transmitting on frequencies listed in section 87.206;
prevent in-cabin mobile devices transmitting on frequencies listed in section 87.206 from operating at power levels sufficient to potentially cause harmful interference to terrestrial mobile networks;
ensure that each transmitting component of the airborne access system maintains minimal emissions, as measured outside the aircraft cabin, to ensure that airborne operations do not cause harmful interference to terrestrial mobile networks;
otherwise comply with technical rules applicable to terrestrial base stations operating on the frequencies listed in section 87.206;
Part 90 of Title 47 of the Code of Federal Regulations is amended as follows: The authority citation for Part 90 continues to read as follows:
AUTHORITY: Sections 4(i), 11, 303(g), 303(r), and 332 (c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), 332(c)(7).
Section 90.423 is revised to read as follows:
§ 90.423 Airborne Operation of Mobile Devices
Devices using frequencies licensed under this rule part are prohibited from operating onboard airborne aircraft except as authorized by § 87.205, et seq.
Initial Regulatory Flexibility Analysis
INITIAL REGULATORY FLEXIBILITY ANALYSIS
As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice. Written comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).2 In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register.3
Need for, and Objectives of, the Proposed Rules.
By this Notice, we propose to allow airlines (or more specifically, station licensees) to provide mobile communications services on aircraft (mobile communications services on aircraft). Currently, the Commission’s rules prohibit airborne use of mobile devices in the 800 MHz cellular band and restrict use in the 800 MHz SMR band, while the rules governing other commercial mobile spectrum bands are silent. Since a previous Notice of Proposed Rulemaking that sought to address these restrictions was terminated in 2007, more than forty jurisdictions, including the European Union and Australia, have authorized the use of mobile communications services on aircraft. To the best of our knowledge, there have been no reports of these services causing any harmful interference to terrestrial networks. We believe that it is in the public interest to bring the benefits of mobile communications services on aircraft to domestic consumers and that the proposals set forth in this Notice further our recent efforts to expand access to airborne broadband services.
We propose to allow mobile communications services on aircraft by: (1) removing existing restrictions on airborne use of mobile devices in the 800 MHz cellular and 800 MHz SMR bands; (2) harmonizing regulations governing the operation of mobile devices on airborne aircraft across all commercial mobile spectrum bands; and (3) implementing a comprehensive regulatory framework to promote airborne mobile data use using all commercial mobile spectrum bands.
Under our proposal, we would add the authority to provide mobile communications services on aircraft across all commercial mobile spectrum bands (as categorized below) to the existing Part 87 aircraft station licenses of domestic airlines. Alternatively, the Notice seeks comment on whether we should permit inflight mobile wireless service using an alternative authorization method. Alternatives could include: 1) non-exclusive licenses by which applicants, an airline or other entity, could file to provide airborne wireless services; 2) terrestrial license leases whereby an airline could provide service through lease agreements with mobile wireless service licensees; 3) auctioned “sky licenses” covering nationwide or geographic markets that would be assigned pursuant to competitive bidding, or; 4) unlicensed use or license-by-rule whereby eligible entities would be permitted to operate without the Commission issuing individual licenses.
We propose to allow mobile communications services on aircraft only if managed by an Airborne Access System (Airborne Access System), which would control the emissions of onboard portable electronic devices by requiring them to remain at or near their lowest transmitting power level and prevent such devices from causing harmful interference to terrestrial networks. We also propose to limit mobile communications services on aircraft to aircraft travelling at altitudes above 3,048 meters (10,000 feet).
Legal Basis. This action is taken under Sections 1, 4(i), 11, and 303(r) and (y), 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 161, 303(r), (y), 308, 309, and 332.
Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted herein.4 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”5 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.6 A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.7
In addition, we have adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. We have defined a small business as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years.8 A very small business is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years.9 The SBA has approved these small size standards.10
In the following paragraphs, we further describe and estimate the number and type of small entities that may be affected by the proposals set forth in the Notice. If our proposals are adopted, small airlines that choose to implement mobile communications services on aircraft could be required to modify their existing Part 87 licenses and comply with new regulatory requirements, including as to the mobile communications services on aircraft equipment.11 Such compliance would involve, to varying degrees, the services described below. Under our proposals, an airline would be permitted to negotiate commercial agreements with the entities described in the following. It is possible that an airline could negotiate agreements affecting all communications services listed, or an airline may reach agreements involving only certain categories.
The Notice also request comment on whether we should permit inflight mobile wireless services through alternative licensing methodologies. In such cases, any eligible entity (airlines or others) would be permitted to provide mobile wireless services onboard aircraft. In such cases, the authorized parties could be any of the service providers listed below. In addition, any device manufacturers that choose to manufacture devices for mobile communications services on aircraft use will have to ensure that such devices comply with any rules adopted in this proceeding.
Small Businesses, Small Organizations, and Small Governmental Jurisdictions. The proposals set forth in the Notice, may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the proposals under consideration. As of 2009, small businesses represented 99.9% of the 27.5 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
Wireless Telecommunications Carriers (except Satellite). Since 2007, the SBA has recognized wireless firms within this new, broad, economic census category.12 Prior to that time, such firms were within the now-superseded categories of Paging and Cellular and Other Wireless Telecommunications.13 Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees.14 For this category census data2007 show that there were 11,163 establishments that operated for the entire year.15 Of this total, 10,791 establishments had employment of 999 or fewer employees and 372 had employment of 1000 employees or more.16 Thus, under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by our proposed action
Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services.17 Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.18 Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite).19 Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees.20 According to Trends in Telephone Service data, 413 carriers reported that they were engaged in wireless telephony.21 Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees.22 Therefore, more than half of these entities can be considered small.
Cellular Licenses. The Cellular Radiotelephone (Cellular) Service is in the 824 – 849 and 869 – 894 MHz spectrum range. The most common use of cellular spectrum is mobile voice and data services, including cell phone, text messaging, and Internet.
The Commission adopted initial rules governing allocation of spectrum for commercial Cellular service, including the establishment of two channel blocks (Blocks A and B), in 1981.23 To issue cellular licenses, the FCC divided the U.S. into 734 geographic markets called Cellular Market Areas (CMAs) and divided the 40 megahertz of spectrum into two, 20 megahertz amounts referred to as channel blocks; channel block A and channel block B. A single license for the A block and the B block were made available in each market. The B block of spectrum was awarded to a local wireline carrier that provided landline telephone service in the CMA. The A block was awarded to non-wireline carriers. The wireline/non-wireline distinction for cellular licenses no longer exists.
The licensee of the initial license was provided a five-year period to expand coverage within the CMA. The area timely built out during that five-year period became the licensee’s initial Cellular Geographic Service Area (CGSA), while any area not built out by the five-year mark was automatically relinquished for re-licensing on a site-by-site basis by the Commission.
The Commission established a two phase licensing approach for areas that reverted back to the FCC. Phase I was a one-time process that started as soon as the five-year period ended and allowed parties to file an application to operate a new cellular system or expand an existing cellular system. Phase I licensing is no longer available. Phase II is an on-going process that allows parties to apply for unserved areas after Phase I ended. At this point, all cellular licensing is in Phase II. On June 4, 2002, the Commission completed the auction of three cellular Rural Service Area licenses.24 Three winning bidders won a total of 3 licenses in this auction. On June 17, 2008, the Commission completed the closed auction of one unserved service area. The auction concluded with one provisionally winning bid for the unserved area totaling $25,002.25 No bidders in either auction received small business bidding credits.
Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous years.26 For Block F licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three years.27 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA.28 No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C Block auctions.29 A total of 93 bidders that claimed “small” and “very small” business status won licenses in the first auction of the D, E, and F Blocks.30 In 1999, the Commission completed a subsequent auction of C, D, E, and F Block licenses.31 Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.32
In 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses (Auction 35). Of the 35 winning bidders in that auction, 29 claimed small or very small businesses status.33 Subsequent events concerning that Auction, including judicial and agency determinations, resulted in only a portion of those C and F Block licenses being available for grant. The Commission completed an auction of 188 C Block licenses and 21 F Block licenses in 2005. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses.34 In 2007, the Commission completed an auction of licenses in the A, C, and F Blocks.35 Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses.36 Most recently, in 2008, the Commission completed the auction of C, D, E, and F Block Broadband PCS licenses.37 Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.38
Advanced Wireless Services. In 2006, the Commission conducted its first auction of Advanced Wireless Services licenses in the 1710-1755 MHz and 2110-2155 MHz bands (AWS-1), designated as Auction 66.39 For the AWS-1 bands, the Commission has defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million.40 In Auction 66, 31 winning bidders identified themselves as very small businesses and won 142 licenses.41 Twenty-six of the winning bidders identified themselves as small businesses and won 73 licenses.42 In a subsequent 2008 auction, the Commission offered 35 AWS-1 licenses.43 Four winning bidders identifying themselves as very small businesses won 17 licenses, and three winning bidders identifying themselves as a small business won five AWS-1 licenses.44
Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits.45 The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years.46 A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years.47 Additionally, the Lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (MSA/RSA) licenses —“entrepreneur”— which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years.48 The SBA approved these small size standards.49
An auction of 740 licenses was conducted in 2002 (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs). Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business, or entrepreneur status and won a total of 329 licenses.50 A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses.51 Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses.52 In 2005, the Commission completed an auction of 5 licenses in the lower 700 MHz band (Auction 60). All three winning bidders claimed small business status.
In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order.53 An auction of A, B and E block licenses in the Lower 700 MHz band was held in 2008.54 Twenty winning bidders claimed small business status. Thirty three winning bidders claimed very small business status.
Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz band licenses.55 In 2008, the Commission conducted Auction 73 in which C and D block licenses in the Upper 700 MHz band were available.56 Three winning bidders claimed very small business status.
Specialized Mobile Radio. The Commission adopted small business size standards for the purpose of determining eligibility for bidding credits in auctions of Specialized Mobile Radio (SMR) geographic area licenses in the 800 MHz and 900 MHz bands. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years.57 The Commission defined a “very small business” as an entity that together with its affiliates and controlling principals, has average gross revenues not exceeding $3 million for the preceding three years.58 The SBA has approved these small business size standards for both the 800 MHz and 900 MHz SMR Service.59 The first 900 MHz SMR auction was completed in 1996. Sixty bidders claiming that they qualified as small businesses under the $15 million size standard won 263 licenses in the 900 MHz SMR band. In 2004, the Commission held a second auction of 900 MHz SMR licenses and three winning bidders identifying themselves as very small businesses won 7 licenses.60 The auction of 800 MHz SMR licenses for the upper 200 channels was conducted in 1997. Ten bidders claiming that they qualified as small or very small businesses under the $15 million size standard won 38 licenses for the upper 200 channels.61 A second auction of 800 MHz SMR licenses was conducted in 2002 and included 23 BEA licenses. One bidder claiming small business status won five licenses.62
The auction of the 1,053 800 MHz SMR licenses for the General Category channels was conducted in 2000. Eleven bidders who won 108 licenses for the General Category channels in the 800 MHz SMR band qualified as small or very small businesses .63 In an auction completed in 2000, a total of 2,800 Economic Area licenses in the lower 80 channels of the 800 MHz SMR service were awarded.64 Of the 22 winning bidders, 19 claimed small or very small business status and won 129 licenses. Thus, combining all three auctions, 41 winning bidders for geographic licenses in the 800 MHz SMR band claimed to be small businesses.
In addition, there are numerous incumbent site-by-site SMR licensees and licensees with extended implementation authorizations in the 800 and 900 MHz bands. We do not know how many firms provide 800 MHz or 900 MHz geographic area SMR pursuant to extended implementation authorizations, nor how many of these providers have annual revenues not exceeding $15 million. One firm has over $15 million in revenues. In addition, we do not know how many of these firms have 1500 or fewer employees.65 We assume, for purposes of this analysis, that all of the remaining existing extended implementation authorizations are held by small entities, as that small business size standard is approved by the SBA.
Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years.66 The SBA approved these definitions.67
The Commission conducted an auction of geographic area licenses in the WCS service in 1997. In the auction, seven bidders that qualified as very small business entities won licenses, and one bidder that qualified as a small business entity won a license.
Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for firms in this category, which is: all such firms having 750 or fewer employees.68 According to Census Bureau data for 2007, there were a total of 939 establishments in this category that operated for the entire year.69 Of this total, 912 had employment of less than 500, and an additional 27 had employment of 500 or more. Thus, under this size standard, the majority of firms can be considered small.
Scheduled Passenger Air Transportation. Air transportation entities, specifically airlines, are implicated only to the extent that the Commission adopts the proposal to permit airlines to provide mobile wireless services. This proposal would give airlines the choice of whether to enable mobile communications services using an Airborne Access System, as well as the specific services to enable. All elements of the Airborne Access Systems and any permissible airborne mobile devices would be subject to applicable FAA and DoT rules and approval procedures.70
The Census Bureau defines this category as follows: This U.S. industry comprises establishments primarily engaged in providing air transportation of passengers or passengers and freight over regular routes and on regular schedules. Establishments in this industry operate flights even if partially loaded. Scheduled air passenger carriers including commuter, and helicopter carriers (except scenic and sightseeing) are included in this industry.71 The SBA has developed a size standard for this industry, which is, all establishments having 1,500 or fewer employees.72 According to Census Bureau information for 2007, 2,569 establishments operated in that year. Of that number, 1,742 operated with more than 1,000 employees.73 Based on this data, we estimate that 827, or approximately 31 percent of these establishments, are small. However, it must be understood that since use of the technology necessary to provide mobile communications services on aircraft is permissive rather than compulsory, no data are available to indicate what percentage of all such passenger-carrying airlines establishments will use this technology after their Part 87 licenses are modified. Accordingly, the Commission cannot project at this time what percentage of all such licensees will be small passenger air transportation establishments.
Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. Under the Commission’s proposal, all Airborne Access System devices must comply with technical and operational requirements, including: Measures that may be taken to limit power include, but are not necessarily limited to, mobile power restrictions, aircraft picocell power restrictions, network control unit power and/or technology limitations, altitude restrictions, and methods to prevent an airborne mobile phone from accessing the ground-based commercial mobile networks.
While our proposals would require small airline businesses to modify their existing Part 87 licenses if they want to provide mobile communications services on aircraft, airlines are not required to install and operate mobile communications services on aircraft Licensees would be permitted to contract with third parties to install equipment for or offer mobile communications services on aircraft. In addition, modifying existing aircraft fleet or station licenses to include proposed mobile communications services on aircraft use should not impose significant administrative burdens on airlines, and they would have the opportunity for an additional revenue stream. On balance, this would constitute a significant benefit for small business.
Steps Taken to Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.74
In the Notice, the Commission proposes that domestic aircraft operators that want to offer mobile communications services on aircraft be required to file for a modification of their existing aircraft station or fleet licenses to include the newly designated use. Also, terrestrial commercial mobile providers would have the option of entering into permissive commercial contracts with airlines to provide access to wireless subscriber services.
The Notice specifically solicits alternative licensing proposals, especially those that would not incur significant and undue adverse impacts on small entities. We also specifically solicit comment regarding the affect our proposals may have on small business entities that may lack the financial and technical resources necessary to deploy mobile communications services on aircraft. We seek comment on factors that may minimize any undue impacts on parties, including small and very small businesses, that may be affected by our proposals. For example, we request comment on whether our proposals have a disproportionate financial impact on small businesses, e.g. smaller air carriers as compared to larger entities, e.g. large airlines. Will our proposals affect the ability of small businesses to compete with larger entities that may more easily afford to deploy an Airborne Access System? If so, we request comment on whether there are factors that could offset such impact. For example, could a small business enter into business agreements with other entities that would make the provision of mobile communications services more feasible for such entities? We seek comment on how to lessen potential burdens on these small carriers, including any factors or arrangements that could make the provision of mobile communications services more practical for small entities.
Federal Rules that May Duplicate, Overlap or Conflict with the Proposed Rules. 14 C.F.R. §§ 91.21, 121.306, 125.204, and 135.144.
CHAIRMAN TOM WHEELER
Re: Expanding Access to Mobile Wireless Services Onboard Aircraft, Notice of Proposed Rulemaking, WT Docket 13-301.
Today’s proposal to remove outdated rules and expand access to mobile wireless services during air travel is pro-free market, pro-competition, pro-consumer, pro-technology, and de-regulatory. It has also garnered a great deal of attention and been widely misunderstood.
Let me say up front that, I get it. I don’t want the person in the seat next to me yapping at 35,000 feet any more than anyone else. So then why are we still moving forward with this item?
To answer that question, let’s look at what this proposal does and does NOT do.
First off, today’s action represents the beginning of a process to collect information and consumer input. As always, we will review input from the public before taking any final action.
Next, the status quo requirement that cellphones may not be used in-flight would be retained. The prohibition, in fact, would be explicitly expanded. The current rule applies only to phones operating on the 800MHz frequency band and ignores all other cellular frequencies. This regulatory inconsistency is poor policy.
The rule change on which we seek comment would extend that prohibition to all frequency bands unless the aircraft is outfitted with on-board equipment that manages a cellular signal before it has the potential to interfere with terrestrial networks. Absent such equipment, the ban would remain in effect.
However, if an airline installs new on-board equipment, the FCC’s ban is no longer necessary. Our engineering belief (on which comment is sought) is that it is technically safe to use the new onboard equipment to prevent interference with terrestrial networks. The proposal would not require airlines to either install such equipment, or to offer mobile wireless services aboard their aircraft. Airlines would be free, within the confines of the rules of the Federal Aviation Administration (FAA) and Department of Transportation (DoT), to make their own decisions. We simply propose that because new technology makes the old rule obsolete the FCC should get government out from between airlines and their passengers. Where there is not a need for regulation, the free market works best to determine the appropriate outcome.
So how might this play out for consumers? If an airline decides to install an on-board access system consumers would be permitted to use their existing mobile devices and not be limited to signing up for WiFi. And the airline would be in total control of what types of mobile services to permit. A mobile device can send texts and emails, and can surf the Web. A mobile device can also make a voice call. The technology allows for the differentiation among such services. Thus, airlines would be free to make their own determination whether to program the new equipment to block voice calls while permitting texting, email and Web surfing, consistent with the rules of the authorities on aviation safety and consumer issues: the FAA and the DoT. I am pleased that the DoT today announced that will begin a process that will look at the possibility of banning in-flight calls.
Today’s proposal is intended to solicit input. It is not a final decision. We look forward to the technology and consumer input this proposal will generate. We invite all interested parties to participate and file comments.
Today’s vote is about more than just how you can use your mobile phone on airplanes; it’s about how this agency should do its job.
The FCC is the expert agency on communications. It is charged with making technology-based decisions.
For over 20 years, an FCC rule from the analog era of cell phones has banned the use of mobile devices on airplanes because of the potential to interfere with terrestrial networks below. But on-board mobile access technology has been operational internationally with great success for the last five years. In accord with that experience, and other data, the Commission’s engineers believe that there are no technical reasons to prohibit such technology to operate in the United States. If the basis for the rule is no longer valid, then the rule is no longer valid. It’s that simple.
The FCC is sometimes criticized for relying on outdated rules that do not reflect current technologies or markets. This is a textbook opportunity to do something about eliminating an unnecessary regulation of the FCC and letting the marketplace function. If we are serious about eliminating outdated regulations that serve no purpose, the decision is clear. A vote not to proceed on seeking comments on this issue is a vote against regulatory reform.
Finally, a word on process. Going back to Commissioner McDowell, there have been calls for increased transparency in the matter in which the FCC presents issues to the public, notably that NPRMs should include proposed rules. I support the calls for this reform. Such a rebuttable presumption allows respondents to target their comments. Failure to include a rebuttable presumption from being the focus of debate would not in the spirit of procedural improvement, and that is why I am pleased this Notice adopts such an approach.
We need to update this rule for the benefit of consumers and to reflect accurately changing technical realities. I urge support for an effort to start this process.
Commissioner Mignon L. Clyburn
Re: Expanding Access to Mobile Wireless Services Onboard Aircraft, Notice of Proposed Rulemaking, WT Docket No. 13-301.
Proposing rule changes, so consumers can benefit from advances in communications technology, is one of the Commission’s core responsibilities. Currently, the FCC prohibits certain cellular communications services on aircraft to guard against the threat of harmful interference to terrestrial wireless networks. However, over the past several years, we have seen the development of Airborne Access Systems that use picocells and a network control unit to minimize potential interference. This technology has now advanced to the point where providers can offer mobile services on planes while protecting aviation safety.
The item before us, today, stands to promote competition for mobile broadband services on planes and creates an environment in which interested air travelers will no longer be left with one option for data service currently allowed by any particular airline. Allowing other wireless companies to compete with available inflight Wi-Fi services could lead to lower prices and better quality data options for fliers. Initiating a rule making, today I believe, is the best way to create an appropriate forum for the wireless industry to provide thoughtful comment so that our staff can carefully examine the engineering and licensing issues necessary to deploy competitive options.
As we know all too well, the announcement of this NPRM was met with some strong reaction based on the belief that these proposals from the FCC would automatically lead to a rash of annoying telephone conversations on planes during flight. As the item explains, however, our proposed rules would not require commercial airlines to permit voice calls. In fact, the Airborne Access Systems give commercial airlines the capacity to prevent voice calls and provide data services only. So I am confident that commercial airlines will continue to monitor the debate and determine if they should simply continue to limit their passengers’ use of this technology to only “quiet” or data services.
Now I admit, upfront, that when traveling by rail I strive to be among the first in line for the quiet car. However, it is my opinion, that this robust debate about mobile phone call etiquette in-flight should not stop the FCC from removing unnecessary and outdated technical rules that could provide consumers with safe, competitive options for mobile broadband service while traveling by air. If enough members of the consuming public oppose voice calls, during flight, I expect the airlines will hear that opposition and govern themselves accordingly.
I thank John Leibovitz and his team for their presentation and I welcome Roger Sherman as the new Chief of the Wireless Telecommunications Bureau.
CONCURRING STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
Re: Expanding Access to Mobile Wireless Services Onboard Aircraft, Notice of Proposed
Rulemaking, WT Docket 13-301.
More than two decades ago, the Commission adopted rules prohibiting the use of cell phones on commercial and private aircraft. These rules, specific to the 800 MHz band, were part of an effort to promote safety and prevent harmful interference.
Today, the Commission begins a rulemaking to reassess this prohibition. In this rulemaking, we ask many questions about the use of cellphones on planes, including for voice calls. As a matter of principle, I believe it is good to ask questions—even the hard ones. So I will concur.
But make no mistake, 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. When it comes to authorizing voice calls on planes, I think the answer is a resounding no. We are not just technicians. Whatever bureaucratic desire we have to harmonize our 800 MHz spectrum rules does not absolve ourselves of the consequences of our decisions. If we move beyond what we do here today and actually update our rules to allow voice calls on planes, we could see a future where our quiet time is monetized and seating in the silent section comes at a premium. But worse, given the anger this proposal has generated and the negative response of so many of those who work on planes, I fear that our safety would be compromised. This is not acceptable.
I fly a lot. I am a regular resident of the last row and middle seat. I know what it is like to have the person in front of you pop their seat back, leaving you scrambling to hold on to your drink, hold on to your reading material, and hold on to some semblance of peace. It is not easy. This Commission does not need to add to that burden. I, for one, will not.
DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Expanding Access to Mobile Wireless Services Onboard Aircraft, Notice of Proposed Rulemaking, WT Docket No. 13-301.
Like most Americans, I fly coach. Each year, the seats feel a little smaller, and my legs get a little more cramped. The airlines charge fees to check luggage, which fuels a mad rush to find space for carry-on bags on packed flights. Going through airport security . . . that’s a whole other set of hassles and indignities. In short, airplane travel these days is often stressful and unpleasant.
As a result, I wasn’t surprised to be bombarded with e-mails as soon as it was announced that the FCC would vote on a proposal that could allow passengers to make in-flight phone calls. Many of these messages were quite colorful. One person wrote: “It’s bad enough being herded like cattle on these planes without having to listen to boorish idiots have needless conversations on their cell phones.” Another said: “[Being] stuck next to a gabber on a 6 hour flight to San Francisco . . . I fear what I’d do with my cutlery!!!” A third wrote simply: “NOOOO.” And those were just from my family!
Although I’m pretty sure that I could resist the urge to stab a fellow passenger, I understand these sentiments and share these concerns. Like most Americans, I don’t want people making phone calls on planes. But given the proposal before us, our task is to determine whether such use of the nation’s spectrum is consistent with the public-interest standard outlined in the Communications Act.
In my judgment, today’s proposal is not in the public interest, and I must respectfully dissent. My principal objections are twofold; they relate to the proposed licensing framework and concerns about public safety.
First, the licensing framework proposed in this item sets a dangerous precedent when it comes to spectrum policy. Wireless carriers have spent tens of billions of dollars, both at auction and in the secondary market, to purchase spectrum licenses. These licenses provide carriers with exclusive use of specified frequencies in specified geographic areas.
Today’s proposal, however, would infringe upon carriers’ exclusive use licenses. Through administrative fiat, airlines would suddenly be licensed (for free) to use the same frequencies that are currently licensed to carriers. However, the NPRM cites no precedent for taking such action. Nor does it answer important questions, such as: Can anyone use a carrier’s licensed spectrum so long as they’re pretty sure they won’t cause interference? With a series of spectrum auctions on the horizon, now is the not the time to cast doubt on the scope of such licenses.
Additionally, I suspect that neither we nor the airlines will find the proposed licensing framework workable or appealing. Under the approach set forth in the NPRM, I do not see how it would be possible for an airline to allow passengers to make telephone calls unless it chose to become a commercial mobile radio station (CMRS) carrier, presumptively subject to the full panoply of obligations and regulations that apply to such carriers. We therefore may have to comb through our rules and decide which ones should apply to airlines that are CMRS carriers, and which ones should not, and come up with a persuasive explanation for each decision. These burdens on the agency and airlines alike are unnecessary.
Rather than inflexibly proposing one particular framework, I believe we should have proposed multiple approaches or just sought comment on a variety of ideas without favoring any one in particular. For example, we could have also proposed spectrum leasing, a tried-and-true method that respects carriers’ exclusive use of licenses. Or we could have proposed altering our base station rules so that carriers could contract with airlines to place cell service on board. Or perhaps there’s another approach that could work, from auctioning “sky licenses” to unlicensed use. In any event, I believe that it is premature for us to endorse one specific proposal today, especially the flawed one that is contained in this item.
Second, the NPRM does not adequately address public safety and national security concerns. Being annoyed at a chatty passenger during a flight is one thing. But flight safety is quite another. And while today’s item maintains that “issues of onboard security and safety of flight are matters primarily reserved for the FAA,” to me the other issues at play in this proceeding are trivial by comparison.
Back in 2005, when the Commission was considering a proposal similar to this one, the Department of Justice, Federal Bureau of Investigation, and Department of Homeland Security told us that there were “public safety and national security-related concerns that stem from the Commission’s proposal.” However, their specific concerns are mentioned nowhere in today’s NPRM. For example, these federal law enforcement agencies told us that our proposal could make it easier for terrorists to coordinate hijackings or detonate remote-controlled improvised explosive devices aboard aircraft. Echoing recent comments from flight attendants, the agencies also voiced their opinion that the Commission’s proposal could lead to more air-rage incidents, which would pose difficulties for air marshals who are supposed to remain anonymous, if possible, during flights.
Before coming to the Commission for my first stint, I worked at the Department of Justice, where I concentrated on counter-terrorism policy. One lesson I learned there was the necessity of close inter-agency coordination when it comes to protecting the American people. I was therefore surprised and disappointed to learn that the Commission didn’t consult and engage in a direct dialogue with federal law enforcement officials prior to circulating this proposal. I am also disappointed that the item does not propose or specifically mention the recommendations made by federal law enforcement officials back in 2005 to mitigate public safety and national security concerns. If we do not specifically ask about these proposals here, I am concerned that we will not have a sufficient record to address those concerns and we will not have sufficient legal notice to include necessary measures in our final rules. That won’t serve anyone well in the end.
* * *
I’ve often said that it is important for the Commission to update its rules to reflect current technological and marketplace realities. So while I believe that there are many other rules on our books that cause more harm and deserve our attention, I am sympathetic to the argument that we should allow the Federal Aviation Administration or individual airlines to decide whether to permit phone calls aboard aircraft. Open to moving forward with a rulemaking, I carefully reviewed the item and offered a number of suggestions for improving it. Unfortunately, most of my suggestions were not accepted, and I cannot support the proposal that remains.
For these reasons, I respectfully dissent.
DISSENTING STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
Re: Expanding Access to Mobile Wireless Services Onboard Aircraft, Notice of Proposed Rulemaking, WT Docket No. 13-301.
I associate myself with the statement of my friend from Kansas, Commissioner Pai, in dissenting on this notice and incorporate his substantive comments by reference. I strongly believe in eliminating unnecessary regulations and the Commission’s ongoing duty to review its rules to determine whether they remain necessary, especially in light of technological or marketplace changes. However, what was originally framed as a deregulatory action – seeking comment on eliminating an outdated rule – was, in fact, accompanied by a proposal for a problematic licensing framework that I am unable to support at this time. The notice also raises important public safety and national security issues that should have been addressed more fully. Nevertheless, I thank the staff for their hard work on this item.
1 News Release, IHS, In-Flight Wireless Installations Take Off; Change in FAA Rules Gives Airlines Opportunity to Promote Services (Nov. 1, 2013), http://press.ihs.com/press-release/design-supply-chain-media/flight-wireless-installations-take-change-faa-rules-gives-ai. This penetration of wireless is up from 15 percent in 2012 and 12 percent in 2011. Id.
3 Airline Passenger Experience Association (APEX) and the Consumer Electronics Association (CEA), Portable Electronic Devices on Aircraft, at 4, 7 (2013), available at: Appendix H of A Report from the Portable Electronics Devices Aviation Rulemaking Committee to the Federal Aviation Administration, Recommendations on Expending the Use of Portable Electronic Devices During Flight, available at: http://www.faa.gov/about/initiatives/ped/media/PED_ARC_FINAL_REPORT.pdf (APEX/CEA Report). See also Press Release, APEX, APEX/CEA Study Reveals Importance, Use of Devices In-Flight (May 9, 2013), http://apex.aero/News/PressRelease/Details/tabid/466/ArticleId/22/APEX-CEA-study-reveals-importance-use-of-devices-in-flight.aspx; Press Release, CEA, Most U.S. Flyers Brought Portable Electronic Devices on Planes in the Last Year, Nearly 30 Percent Accidently Left Them Turned On (May 9, 2013), http://www.ce.org/News/News-Releases/Press-Releases/2013-Press-Releases/Most-U-S-Flyers-Brought-Portable-Electronic-Device.aspx.
4See Press Release, FAA, FAA to Allow Airlines to Expand Use of Personal Electronics (Oct. 31, 2013), http://www.faa.gov/news/press_releases/news_story.cfm?newsId=15254 (FAA PED Press Release); See also A Report from the Portable Electronics Devices Aviation Rulemaking Committee to the Federal Aviation Administration, Recommendations on Expending the Use of Portable Electronic Devices During Flight, at ix (Sept. 30, 2013), available at: http://www.faa.gov/about/initiatives/ped/media/PED_ARC_FINAL_REPORT.pdf (ARC Report).
5 Throughout the Notice we refer to networks primarily providing ground-based network services as “terrestrial” networks or licensees. This colloquial usage is not intended to invoke technical meanings of the term “terrestrial” that may be familiar in other regulatory (e.g., FCC or International Telecommunication Union (ITU)) contexts.
6See infra Section II.D.
7See 47 C.F.R. §§ 22.925 and 90.423.
8 For purposes of this Notice, “commercial mobile spectrum bands” include: (1) the 800 MHz cellular band (824-849 and 869-894 MHz); (2) SMR spectrum within the bands (806-821 and 851-866 MHz and 896-901 and 935-940 MHz); (3) the Broadband Personal Communications Service (PCS) band (1850-1915 and 1930-1995 MHz); (4) 700 MHz band (698-757 and 775-787 MHz); (5) the Advanced Wireless Services (AWS) band (1710-1755 and 2110-2155 MHz); (6) the Wireless Communications Service (WCS) band (2305-2320 and 2345-2360 MHz); and AWS-4 (2000-2020 MHz and 2180-2200 MHz). We would expect to add other spectrum bands if and when they are allocated for commercial mobile broadband use.
9See 47 C.F.R. § 87.18.
10 A description of the components and capabilities of the most common type of Airborne Access System in use can be found in SectionIII.B.2 infra.
11 The FAA has oversight of all aspects of U.S. civil aviation, with responsibilities that include ensuring civil aviation safety. The DoT has oversight over aviation consumer protection issues.
1See 47 C.F.R. §§ 22.925 and 90.423.
2 Wi-Fi on aircraft, as anywhere, uses unlicensed spectrum and therefore has no such restrictions.
3See 47 C.F.R. § 22.925 (“Cellular telephones installed in or carried aboard airplanes, balloons or any other type of aircraft must not be operated while such aircraft are airborne (not touching the ground). When any aircraft leaves the ground, all cellular telephones onboard that aircraft must be turned off.”).
4 Amendment of Sections of Part 22 of the Commission’s Rules in the Matter of Airborne Use of Cellular Telephones and the Use of Cell Enhancers in the Domestic Public Cellular Radio Service, Report and Order, CC Docket No. 88–411, 7 FCC Rcd 23 (1991) (Airborne Use of Cellular Telephones Report and Order). An exception to section 22.925’s strict prohibition against airborne cellular use was made when AirCell, Inc. demonstrated that its equipment would not cause harmful interference to terrestrial cellular systems. See AirCell, Inc. Petition, Pursuant to Section 7 of the Act, For a Waiver of the Airborne Cellular Rule, or in the Alternative, For a Declaratory Ruling, Order, 14 FCC Rcd 806 (1998), recon. granted in part, denied in part, Order on Reconsideration, 14 FCC Rcd 18430 (1999), app. for rev. denied, Memorandum Opinion and Order, 15 FCC Rcd 9622 (2000), pet. for rev. granted in part, denied in part sub nom; AT&T Wireless Svcs., Inc. v. FCC, 270 F.3d 959 (D.C. Cir. 2001), pet. for reh’g denied Jan. 29, 2002, Order on Remand, 18 FCC Rcd 1926 (2003), pet. for rev. denied sub nom; AT&T Wireless Svcs., Inc. v. FCC, 365 F.3d 1095 (D.C. Cir. 2004).
5See Airborne Use of Cellular Telephones Report and Order,7 FCC Rcd at 23 ¶ 5.
8See 47 C.F.R. § 90.423.
10See Amendment of Parts 89, 91, and 93 of the Commission’s Rules Concerning Use of Land Mobile Frequencies Aboard Aircraft, Report and Order, Docket No. 19545, 42 F.C.C.2d 505, 505 ¶ 2 (1973) (Airborne Land Mobile Order).
11See Amendment of the Commission’s Rules to Facilitate the Use of Cellular Telephones and Other Wireless Devices Aboard Airborne Aircraft, Notice of Proposed Rulemaking, WT Docket No. 04-435, 20 FCC Rcd 3753 (2004) (Airborne Mobile NPRM).
12See id. at 3754 ¶ 2.
13See id. at 3755 ¶ 3.
14See id. at 3755 ¶ 4, 3761-64 ¶¶ 13-21.
15See id. at 3762 ¶¶ 14-16.
16See id. at 3764 ¶¶ 20-21.
17See generally Comments in WT Docket No. 04-435.
18See Amendment of the Commission’s Rules to Facilitate the Use of Cellular Telephones and Other Wireless Devices Aboard Airborne Aircraft, Memorandum Opinion and Order, WT Docket No. 04-435, 22 FCC Rcd7156, 7156-57 ¶¶ 2-3 (2007) (Airborne Mobile Termination Order).
19id. at 7157 ¶ 3.
20 Among these nations are Azerbaijan, Egypt, Jordan, Malaysia, Qatar, Russia, Saudi Arabia, Singapore, Thailand, and the United Arab Emirates. In addition, the Asia Pacific Telecommunity (APT) has adopted non-mandatory Guidelines on Technical Conditions for the Use of Mobile Phones Onboard Aircraft. No. APT/AWG/OP-02 (Rev.2) (2008, rev. 2011), available at: http://www.apt.int/AWF-RECREP (APT Guidelines). APT members include Australia, the Democratic Republic of Korea, India, Japan, New Zealand, the People’s Republic of China, Philippines, the Republic of Malaysia, Singapore, Thailand, and Vietnam.
21See, e.g.,Recommendation ITU-R M.1224-1 (03/2012), Vocabulary of terms for International Mobile Telecommunications (IMT), at 62, available at: http://www.itu.int/rec/R-REC-M.1224-1-201203-I/en (posted May 11, 2012); Report from CEPT to the European Commission in response to the Second Mandate to CEPT on mobile communication services on board aircraft (MCA), CEPT Report 48, at 6 (Mar. 8, 2013), available at: http://www.erodocdb.dk/Docs/doc98/official/pdf/CEPTREP048.PDF (CEPT MCA Report 48). The 1800 MHz band is comprised of frequencies 1710-1785 MHz for uplink and 1805-1880 MHz for downlink. See, e.g.,Commission Decision 2008/294/EC, 2008 O.J. (L 98/19), at Annex, Table 1 (EC), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:098:0019:0023:EN:PDF (EC Decision).
22 See EC Decision. Specifically, a “mobile communications service on aircraft” service is an “electronic communications service . . . provided by an undertaking to enable airline passengers to use public communication networks during flight without establishing direct connections with terrestrial mobile networks.” Id. at Art. 2. In the United States, the 1710-1785 and 1805-1880 MHz bands are allocated for various uses, including commercial wireless, federal use, fixed microwave, cable antenna relay service, and other uses.
23 Report from CEPT to the European Commission in response to the EC Mandate on Mobile Communication Services on board aircraft (MCA), CEPT Report 016 (Mar. 30, 2007), available at: http://www.erodocdb.dk/Docs/doc98/official/pdf/CEPTREP016.PDF (CEPT MCA Report 16).
24 ECC Decision of 1st December 2006 on the harmonised use of airborne GSM systems in the frequency bands 1710-1785 and 1805-1880 MHz, ECC/DEC/(06)07 (amended Mar. 13, 2009), available at: http://www.erodocdb.dk/Docs/doc98/Official/Pdf/ECCDec0607.pdf (ECC Decision).
25 The ECC is one of three business committees of CEPT. CEPT MCA Report 16 and the ECC Decision both were created pursuant to a Mandate given by the EC to CEPT in 2006. CEPT MCA Report 16 at Annex 1. Pursuant to the EU’s Radio Spectrum Decision (Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community), CEPT is mandated to undertake the work required to identify the most appropriate technical criteria for the timely and harmonized introduction of mobile communications service on aircraft applications in the EU.
26 CEPT MCA Report 16 assumes an interference criterion of I/N < -6dB (equivalent to a 1 dB increase of the noise floor) to terrestrial systems.
27 While CEPT Report 16 only addressed the operation of Airborne Access Systems in the 1800 MHz band, the report did study potential harmful interference from such systems into terrestrial operations in the 460-470 MHz, 921-960 MHz, 1805-1880 MHz, and 2110-2170 MHz bands.
28See generally CEPT MCA Report 16. The ECC Decision covers the free circulation and harmonized usage of mobile communications service on aircraft systems and sets out the technical limits that should be observed to ensure that such systems do not cause any harmful interference. See generally ECC Decision. See also Ofcom, Mobile Communications on board Aircraft, Ofcom Statement on Authorising MCA Services, at 33(Mar. 26, 2008), available at: http://stakeholders.ofcom.org.uk/binaries/consultations/mca/statement/mca.pdf (Ofcom Statement). It found that EU administrations must allow the use of mobile communications services on aircraft within the 1800 MHz band, provided that the system does not cause harmful interference to, or claim protection from, any other authorized system and that the use of the system complies with the technical and operational requirements set out in the ECC Decision. ECC Decision at 5. ECC Decisions are regulatory texts providing measures on significant harmonization matters, which CEPT member national regulatory authorities are strongly urged, but not required, to follow. ECC reports and decisions and CEPT reports inform EC decisions; EC decisions are binding on EU Member States, but CEPT – and ECC – reports and decisions are not. See CEPT, All About Our Organisation, The European Conference of Postal and Telecommunications Administrations, at 1, http://www.cept.org/files/1047/CEPT_about_us.pdf; Ofcom Statement at 33.
29See European Commission, Implementation of Decision 2008/294/EC, https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/2008_294_100915impl.pdf; see also Ofcom Statement. The nations that allow mobile communications services on aircraft authorize the service in various ways. For example, in the United Kingdom, the Office of Communications (Ofcom) authorizes the installation and use of airborne systems by varying the aircraft radio license of aircraft registered in the United Kingdom through a Notice of Variation. See Ofcom Statement at 23; Ofcom, Notice of Proposal to Make the Wireless Telegraphy (Mobile Communication Services on Aircraft) (Exemption) Regulations 2008, Annex 7, Draft Notice of Variation (NoV) to Aircraft Licence (2008), available at: http://stakeholders.ofcom.org.uk/binaries/consultations/mca08/summary/mca.pdf. Pursuant to a Notice of Variance, the Airborne Access System is authorized in the relevant aircraft radio license for certain frequencies, with certain technical requirements. In Australia, for frequencies that are not licensed, use of the radiofrequency spectrum for airborne mobile services may be authorized by an apparatus license for the onboard base station and by a class license for user devices. See Australian Communications and Media Authority, Proposed amendments to radiocommunications licensing instruments for mobile communication services on aircraft radiocommunications licensing policy discussion paper at 11 (2009), available at: http://www.acma.gov.au/webwr/_assets/main/lib311255/mobile_svces_on_aircraft-disc_paper.pdf; Press Release, Australian Communications and Media Authority, ACMA green lights new licensing arrangements for mobile communication services on aircraft (July 30, 2010), http://www.acma.gov.au/theACMA/acma-media-release-952010-30-july-2010-acma-green-lights-new-licensing-arrangements-for-mobile-communication-services-on-aircraft. However, in licensed spectrum bands, mobile communications services on aircraft must be authorized by agreement with the spectrum license holder. Id.
30See Commission Implementing Decision 2013/654/EU, 2013 O.J. (L 303/48) (EC), available at: https://ec.europa.eu/digital-agenda/en/news/commission-implementing-decision-c-2013-7491-mca-services-adopted-12112013 (Updated EC Decision). The decision authorized the use of Long Term Evolution (LTE) technology in the 1800 MHz band and Universal Mobile Telecommunications System (UMTS) technology in the 1920-1980 / 2110-2170 MHz band consistent with the recommendations set forth in CEPT MCA Report 48. See also Press Release, European Commission, Surfing in the sky: Commission gives airlines green-light for 3G and 4G broadband services on board aircraft (Nov. 14, 2013), http://europa.eu/rapid/press-release_IP-13-1066_en.htm. UMTS and LTE are technologies based on the GSM standard.
31 CEPT MCA Report 48.
32See, e.g., Press Release, European Union, First European airlines offering in-flight use of mobile phones thanks to EU-wide ground rules (Apr. 2, 2009), http://europa.eu/rapid/press-release_IP-09-526_en.htm?locale=en. See also Todd Shields, Yes, You Can Use Your Phone on a Plane. Just Not to Talk., Bloomberg, Nov. 12, 2013, http://www.bloomberg.com/news/2013-11-12/airlines-run-from-onboard-gabfests-as-gadget-use-embraced.html; Bart Jansen, Should U.S. airlines allow cell calls during flight?, USA Today, Oct. 8, 2012, http://www.usatoday.com/story/travel/flights/2012/10/07/airline-cellphones/1611079/; Kent German, Cell phones in the sky: Airlines that allow mobile use, CNET, Jan. 31, 2011, http://www.cnet.com/8301-17918_1-20030100-85.html#ixzz2NLo7c2UZ; FAQs, AeroMobile, http://www.aeromobile.net/passengers/faqs (AeroMobile FAQs); Mobile OnAir, OnAir, http://www.onair.aero/en/commercial-airlines-products-mobile-onair.
33Who Flies With Us, OnAir, http://www.onair.aero/en/commercial-airlines-customers (Who Flies with OnAir). See also Shields, supra note 40; Jansen, supra note 40. OnAir provides service to a total of sixteen air carriers: Aeroflot, Azerbaijan Airlines, British Airways, Cebu Pacific Air, Egyptair, Emirates Airlines, Etihad Airways, Hong Kong Airlines, Libyan Airlines, Oman Air, Philippine Airlines, Qatar Airways, Royal Jordanian, Saudia, Singapore Airlines, and TAM Airlines. See also Shields, supra note 43; Jansen, supra note 43.
34About Us, AeroMobile, http://www.aeromobile.net/about-us (About AeroMobile). See also Jansen, supra note 40. AeroMobile provides service to a total of nine air carriers: Aer Lingus, Air France, Emirates Airlines, Etihad Airways, KLM Airlines, SAS Scandinavian Airlines, Singapore Airlines, Transaero Airlines, and Virgin Atlantic. About AeroMobile. See also Jansen, supra note 43.
36See, e.g., Jansen, supra note 43; Rachel Sang-hee Han, Virgin Atlantic offers in-flight mobile service. Annoyed yet?, CNN, May 18, 2012; Virgin Atlantic allows in-flight calls - six at a time, BBC, May 16, 2012. Virgin Atlantic disables the service within 250 miles of U.S. airspace. Jansen, supra note 43. Airborne Access Systems on board Virgin Atlantic flights automatically switch off once they enter U.S. air space. Aeromobile - Where does it work?, Virgin Atlantic, http://virginatlantic.custhelp.com/app/answers/detail/a_id/675.
37 This proceeding is discussed in more detail in Section II.E, infra.
38 Panasonic is a part owner of AeroMobile. AeroMobile comments, Passenger Use of Portable Electronic Devices on Board Aircraft, Docket No. FAA-2012-0752, at 1 (2012) (AeroMobile Comments to FAA). The companies partner to provide the "eXPhone" system, which provides mobile communications services on aircraft. Id.
39 Panasonic Comments, Passenger Use of Portable Electronic Devices on Board Aircraft, Docket No. FAA-2012-0752 at 2 (2012).
40 AeroMobile Comments to FAA at 1. In that same proceeding, AIRBUS stated that “[d]ue to the high robustness of safety relevant equipment against EMI [electromagnetic interference], the number of proven EMI influence caused by PED is negligible today.” AIRBUS comments, Passenger Use of Portable Electronic Devices on Board Aircraft, Docket No. FAA-2012-0752 at 3 (2012).
41See Amendment of the Commission's Rules Relative to Allocation of the 849-851/894-896 MHz Bands, Report and Order, GN Docket No. 88-96, 5 FCC Rcd 3861 (1990), recon. granted in part, Amendment of the Commission's Rules Relative to Allocation of the 849-851/894-896 MHz Bands, Memorandum Opinion and Order, 6 FCC Rcd 4582 (1991). The Commission authorized this operation at 849-851 MHz (ground stations) and 894-896 MHz (airborne mobile stations).
42AirCell, Inc., Petition, Pursuant to Section 7 of the Act, For a Waiver of the Airborne Cellular Rule, or in the Alternative, For a Declaratory Ruling, Order, 14 FCC Rcd 806 (1998). Though AirCell operated in the cellular spectrum (825 to 894 MHz), AirCell did not provide service to conventional cellular handsets. See id. at 807 ¶ 3. Instead, AirCell used “modified cellular telephones” and specially-designed “airborne mobile terminals installed on board general aviation aircraft” that incorporated a “specially designed aircraft antenna.” See id. at 806 ¶ 1, 807 ¶ 3.
43See Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications Services, Report and Order, WT Docket No. 03-103, 20 FCC Rcd 4403 (2005).
44 For example, Gogo Inc. (Gogo), formerly AirCell, acquired three megahertz of 800 MHz Air-Ground spectrum and began offering Wi-Fi services on board aircraft in 2008. See Company info, History, Gogo, http://gogoair.mediaroom.com/history. Gogo has installed Wi-Fi service on approximately 2,000 commercial aircraft. See News Release, Gogo, Gogo Surpasses 2,000 Aircraft Installed with Its In-flight Internet Service (Sept. 26, 2013), http://ir.gogoair.com/phoenix.zhtml?c=251827&p=irol-newsArticle&ID=1859111&highlight=. In addition, Gogo recently introduced a new “Text & Talk” technology, which leverages Gogo's in-flight Wi-Fi system to allow passengers to send text messages and make phone calls using their smartphone while airborne. See Press Release, Gogo, Gogo Unveils Its Next In-Air Technological Innovation: Gogo Text & Talk, http://gogoair.mediaroom.com/2013-11-08-Gogo-Unveils-Its-Next-In-Air-Technological-Innovation-Gogo-Text-Talk.
45See, e.g., Panasonic Avionics Corporation, Order and Authorization, 26 FCC Rcd 12557 (2011); Row 44, Inc., Order and Authorization, 24 FCC Rcd 10223 (2009); ViaSat, Inc., Order and Authorization, 22 FCC Rcd 19964 (2007); ARINC Incorporated, Order and Authorization, 20 FCC Rcd 7553 (2005); and Boeing Company, Order and Authorization, 16 FCC Rcd 5864 (2001), Order and Authorization, 16 FCC Rcd 22645 (2001). Gogo also was recently granted an authorization to operate earth stations aboard aircraft transmitting in the Ku-band. Gogo LLC, Application for Blanket Authority for Operation of 1,000 Technically Identical Ku-Band Transmit/Receive Earth Stations in the Aeronautical Mobile Satellite Service, IBFS File Nos. SES-LIC-20120619-00574, SES-AMD-20120731-00709, SES-AFS-20121008-00902, granted May 1, 2013.
46 Revisions to Parts 2 and 25 of the Commission’s Rules to Govern the Use of Earth Stations Aboard Aircraft Communicating with Fixed-Satellite Service Geostationary-Orbit Space Stations Operating in the 10.95-11.2 GHz, 11.45-11.7 GHz, 11.7-12.2 GHz and 14.0-14.5 GHz Frequency Bands, Notice of Proposed Rulemaking and Order, IB Docket No. 12-376, 27 FCC Rcd 16510 (2012) (ESAA Order). For example, Southwest Airline offers satellite enabled Wi-Fi internet access. http://www.southwest.com/wifi/.
47 47 C.F.R. § 22.853.
48See Application of AC BidCo, LLC, Gogo Inc., and LiveTV, LLC For Consent To Assign Commercial Aviation Air-Ground Radiotelephone (800 MHz band) License, Call Sign WQFX729, Memorandum Opinion and Order, WT Docket No. 12-155, 28 FCC Rcd 3362 (WTB 2013).
49Id.at 3366-67 ¶¶ 13-14.
50 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, GN Docket No. 13-114, 28 FCC Rcd 6765 (2013) (14 GHz NPRM).
51See generally id.
52See ARC Report; See also Press Release, FAA, supra note 4.
53 ARC Report at ix. See also Press Release, FAA, supra note 4.
54See ARC Report at ix. See also Press Release, FAA, supra note 4.
55See generally ARC Report.
56Seeid. at 5, 34.
57See Press Release, FAA, supra note 4; FAA, Expanding Use of Passenger Portable Electronic Devices (PED), InFO Information for Operators, InFO 13010 (Oct. 31, 2013), available at:http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2013/InFO13010.pdf; FAA, FAA Aid to Operators for the Expanded Use of PEDs, FAA, InFO Information for Operators, InFO 13010 SUP (Oct. 31, 2013), available at:http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/info/all_infos/media/2013/InFO13010SUP.pdf; FAA, Expanded Use of Passenger Portable Electronic Devices (PED), Notice 8900.240 (Oct. 31, 2013), available at:http://www.faa.gov/documentLibrary/media/Notice/N8900.240.pdf (collectively, FAA Guidance).
1 Global mobile data traffic was 885 petabytes per month at the end of 2012 as compared to 520 petabytes per month at the end of 2011. See Cisco, Visual Networking Index: Global Mobile Data Traffic Forecast Update, 2012–2017 at 1 (rel. February 6, 2013), available at: http://www.cisco.com/en/US/solutions/collateral/ns341/ns525/ns537/ns705/ns827/white_paper_c11-520862.pdf.
2See id. at 5-8.
3See supra Section II.C.
4See 47 C.F.R. §§ 22.925 and 90.423.
5 As an example of how this type of service has been offered internationally, OnAir has agreements with individual airlines to provide service on board airplanes equipped with OnAir’s Airborne Access System. To provide its in-cabin mobile service to passengers, OnAir has roaming agreements with various mobile network operators, and the rates charged to passengers for mobile phone use are determined by the passenger’s home mobile operator. OnAir also has partnered with satellite provider Inmarsat for its air-ground link. SeeFAQs, OnAir, http://www.onair.aero/en/faqs (OnAir FAQs). AeroMobile’s mobile service also is comparable to international roaming, whereby it has roaming agreements with home mobile operators, and roaming charges are set by the home operator. See AeroMobile FAQs, supra note 40. Charges then appear on passengers’ existing mobile phone bill, just as when roaming abroad. Id.
6See 47 C.F.R. §§ 22.92 and 90.423.
7See Appendix A.
8 This proceeding does not address paging services authorized under Part 22 of the Commission’s rules. This Notice is primarily concerned with facilitating the deployment of airborne mobile broadband services and, as such, paging services are beyond the scope of this proposal.
9Airborne Use of Cellular Telephones Report and Order, 7 FCC Rcd at 23 ¶ 5.
10See generally CEPT MCA Report 16 and CEPT MCA Report 48.
11 According to one report, almost one-third (30 percent) of passengers report they have accidently left a PED turned on during a flight. APEX/CEA Report at 5, 15. See also Press Release, APEX, supra note 3. The APEX/CEA Report also found that when asked to turn off their electronic devices, 59 percent of passengers say they always turn their devices completely off, 21 percent of passengers say they switch their devices to “airplane mode,” and 5 percent say they sometimes turn their devices completely off. APEX/CEA Report at 5, 15. See also Press Release, APEX, supra note 3.
12See Airborne Use of Cellular Telephones Report and Order, 7 FCC Rcd at 23 ¶ 5; Airborne Land Mobile Order,42 F.C.C.2d at 505 ¶ 2.
13 Airborne Access Systems using picocells and NCUs are used extensively in EU member countries and elsewhere. See supra Section II.C.
14See Airborne Mobile NPRM, 20 FCC Rcd at 3761-62 ¶ 13; CEPT MCA Report 16 at 6.
15See CEPT MCA Report 16 at 11-12.
16See infra Section III.C.3.
17See supra Section II.C.
19See EC Decision at Table 1; AeroMobile Comments to FAA, Docket No. FAA-2012-0752 at 2.
20See Updated EC Decision. See also CEPT MCA Report 48.
21See CEPT MCA Report 48.
22See generally CEPT MCA Report 16 and CEPT MCA Report 48.
23See CEPT MCA Report 48.
24See id. at 21.
26 For example, the report assumed operation in the 2100 MHz and 1800 MHz bands. The limitations discussed above, if applicable, could be adjusted to account for changes in free space path loss for operation on U.S. spectrum.
27 CEPT’s analysis assumes an Airborne Access System using one or more picocells.
28See CEPT MCA Report 48 at 21-22.
29See CEPT MCA Report 16.
30See CEPT MCA Report 48.
31See id. at 13, 16, 21-22.
32See EC Decision at Article 2; CEPT MCA Report 48 at 10.
33See CEPT MCA Report 48 at 22.
34See EC Decision at Table 3.
35See CEPT MCA Report 48 at 22.
36See Aircraft Certification, FAA, http://www.faa.gov/aircraft/; Advisory Circulars, Aircraft, FAA,http://www.faa.gov/regulations_policies/advisory_circulars/index.cfm/go/document.list/parentTopicID/101; The FAA and Industry Guide to Product Certification (CPI Guide), FAA, http://www.faa.gov/aircraft/air_cert/design_approvals/media/cpi_guide_ii.pdf.
37See FAA PED Press Release; FAA Guidance; ARC Report at 23-25, Appendix F.
38See OnAir FAQs (“Operators using Mobile OnAir can also choose to turn off the voice element of the Mobile OnAir service, for example during the plane’s local night.”).
39See Inflight Experience, Comfort and Entertainment, Transatlantic Economy, Wi-Fi & Connectivity, Aer Lingus,http://www.aerlingus.com/inflight-experience/comfort-and-entertainment/longhaul/wifi-connectivity/; Mobile Phones, Virgin Atlantic, http://www.virgin-atlantic.com/us/en/the-virgin-experience/inflight-connectivity/mobile-phones.html.
40See 47 C.F.R. § 87.1, et seq. We note that U.S.-registered civil aircraft licensed for an Airborne Access System would bear the responsibility of ascertaining and complying with the applicable laws, regulations, and rules of any foreign nation in which they seek to operate.
41See Amendment of Parts 80 and 87 of the Commission's Rules to Permit Operation of Certain Domestic Ship and Aircraft Radio Stations Without Individual Licenses, Report and Order, WT Docket No. 96-82, 11 FCC Rcd 14849 (1996); 47 C.F.R. § 87.18(b).
42See 47 C.F.R. § 87.18.
43See Appendix A.
46See generally ARC Report; FAA Guidance.
48See supra Section II.C.
49See 47 U.S.C. § 309(a).
50 As noted below, we propose to prohibit mobile communications services on aircraft from operating on spectrum allocated exclusively for federal use. See infra Section III.C.3.
51 There are over 14,166 licenses, held by approximately 788 unique entities (based on licensee FCC Registration Number), for the spectrum bands within the scope of this Notice.
52See supra Section III.B.3.
53See supra Section II.C.
54See EC Decision at Article 4.
55See 47 C.F.R. § 20.3.
56See FCC Form 601.
57 The Commission sought comment on a similar approach in the 14 GHz NPRM. See 14 GHz NPRM, 28 FCC Rcd at 6781-82 ¶¶ 54-55.
58 For example, section 20.15 identifies requirements relating to Title II of the Communications Act that are applicable to CMRS licensees. See 47 C.F.R. § 20.15. Such Title II requirements include the obligation to provide service "upon reasonable request therefor," and at a "just and reasonable" rate, 47 U.S.C. § 201, as well as the requirement to provide services without "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services." 47 U.S.C. § 202. Other obligations identified in Part 20 include 911 service, hearing aid compatibility as well as roaming. See 47 C.F.R. §§ 20.12, 20.18, 20.19.
59 Form 605 would be modified to incorporate this proposal.
60See, e.g., 47 C.F.R. § 27.10(d).
61See, e.g., 47 C.F.R. § 27.66.
62 47 U.S.C. § 310 provides in relevant part: “(a) The station license required under this Act shall not be granted to or held by any foreign government or representative thereof. (b) No broadcast or common carrier or aeronautical en route or aeronautical fixed radio station license shall be granted to or held by—(1) any alien or the representative of any alien; (2) any corporation organized under the laws of any foreign government; (3) any corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country; (4) any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license.”). 47 U.S.C. §§ 310(a), (b). See also Review of Foreign Ownership Policies for Common Carrier & Aeronautical Radio Licensees Under Section 310(b)(4) of the Communications Act of 1934, As Amended, Second Report and Order, IB Docket No. 11-133, 28 FCC Rcd 5741 (2013).
63 A “station license” is defined in Section 3(49) of the Act as “that instrument of authorization required by [the] Act or the rules and regulations of the Commission made pursuant to [the] Act, for the use or operation of apparatus for transmission of energy, or communications, or signals by radio by whatever name the instrument may be designated by the Commission.” 47 U.S.C. § 153(49). For example, the Commission issues radio station licenses for the provision of broadcast, wireless personal communications services, cellular, microwave, aeronautical en route, and mobile satellite services.
64 47 U.S.C. § 310(a). This prohibition is absolute, and the Commission has no discretion to waive it. The Commission has stated that, for purposes of section 310(a), a “representative” is a person or entity that acts “on behalf of” or “in connection with” the foreign government. See, e.g.,QVC Network, Inc., Memorandum Opinion and Order, 8 FCC Rcd 8485, 8490-91 ¶ 21 (1993) (quoting Letter from the Commission to Russell G. Simpson, Esq., 2 F.C.C. 2d 640 (1966)).
65 47 U.S.C. § 310(b).
66Id. at §§ 310(b)(3) and (4).
67 Providers of mobile radio services are typically considered common carriers under the Act. See 47 U.S.C. § 332
68See, e.g., 47 C.F.R. §§ 20.11 and 20.12. As explained in paragraph 57, supra, we seek comment on the CMRS obligations that should apply to aircraft station licensees that choose to operate as CMRS.
69 47 U.S.C. § 301.
70See 47 C.F.R. § 1.903(c) (“[A]uthority for subscribers to operate mobile or fixed stations in the Wireless Radio Services…is included in the authorization held by the licensee providing service to them.”). We note that, applying the language of section 1.903(c) to our proposed expansion of the Part 87 license, if a Part 87 licensee provides service to subscribers using devices normally served by a terrestrial-based provider, the “authority for [such] subscribers to operate” these devices would be included in the Part 87 license at the time these subscribers are receiving service from the Part 87 licensee; under these circumstances, the “licensee providing service” to the subscribers is the Part 87 licensee, not the terrestrial-based provider.
71See 47 C.F.R. § 1.907.
72 47 U.S.C. § 333.
73See supra Section III.B.3.
74See, e.g., APT Guidelines. As described above, the EU has mandated that mobile communications services on aircraft operate in the GSM 1800 band. See supra Section II.C.
75See 47 C.F.R. § 2.106. See also Commerce Spectrum Management Advisory Committee (CSMAC), Working Group 2: 1755-1850 MHz Law Enforcement Surveillance, Explosive Ordnance Disposal, and other short distance links, at 3, 4 (Jan. 2013), available at: http://www.ntia.doc.gov/files/ntia/publications/csmac_wg-2_final_report_jan-4-2012.pdf; CSMAC Spectrum Management Advisory Committee, Working Group 5: 1755-1850 MHz Airborne Operations (CSMAC WG-5 Report) (Sept. 2013), available at: http://www.ntia.doc.gov/files/ntia/publications/wg5_1755-1850_final_reportl-09-16-2013.pdf; See NTIA, An Assessment of the Near-Term Viability of Accommodating Wireless Broadband Systems in the 1675-1710 MHz, 1755-1780 MHz, 3500-3650 MHz, 4200-4220 MHz, and 4380-4400 MHz Bands at 3-25 – 3-29 (rel. October 2010), available athttp://www.ntia.doc.gov/files/ntia/publications/fasttrackevaluation_11152010.pdf.
76 Currently, Virgin Atlantic disables its Airborne Access System AAS service within 250 miles of U.S. airspace. See supra Section II.C. We also invite commenters to provide technical studies demonstrating what is sufficient to prevent harmful interference in the 1755-1850 MHz band.
77See Amendment of the Commission's Rules with Regard to Commercial Operations in the 1695-1710 MHz, 1755-1780 MHz, and 2155-2180 MHz Bands, Notice of Proposed Rulemaking, GN Docket No. 13-185, 28 FCC Rcd 11479 at 11495-96 and 11512-15, ¶¶ 32-34 and 73-79 (2013).
78See, e.g.,47 C.F.R. §§ 2.106 and notes 338, 339 and 385 (addressing limitations on aeronautical use of the WCS Band and ban on aeronautical mobile use of BRS/EBS Band).
79See, e.g., Jansen, supra note 43; Rachel Sang-hee Han, supra note 47; Virgin Atlantic allows in-flight calls, supra note 47;AeroMobile - Where does it work?, supra note 43.
80 Convention on International Civil Aviation, signed Dec. 7, 1944, Article 30. The Commission implemented this Article in the Part 87 regulations concerning aviation services. Section 87.191(a) states: “Aircraft of member States of the International Civil Aviation Organization may carry and operate radio transmitters in the United States airspace only if a license has been issued by the State in which the aircraft is registered and the flight crew is provided with a radio operator license of the proper class, issued or recognized by the State in which the aircraft is registered. The use of radio transmitters in the United States airspace must comply with these rules and regulations.” 47 C.F.R. § 87.191(a).
81 By its terms, the Chicago Convention does not prohibit the nation over which the foreign-registered aircraft is flying from also issuing a license for the transmitter. Therefore, a single Airborne Access System onboard a single aircraft could have a separate license for each nation through which it passes.
82 ICAO is a specialized agency of the United Nations created in 1944 to promote the safe and orderly development of international civil aviation throughout the world. It sets standards and regulations necessary for safety, security, efficiency and regularity of flight, as well as for aviation environmental protection. Contracting States undertake to adopt and put into operation the standards and recommendations issued by ICAO. Mutual recognition of licenses by Contracting States is tied to the requirement that licenses be “equal to or above the minimum standards which may be established from time to time pursuant to this Convention.” Information on how ICAO adopts technical standards may be found at http://www.icao.int/icao/en/anb/mais/index.html.
83 ICAO has stated that “The free circulation and use of radio equipment on board aircraft for the purpose of public correspondence is not governed by the provisions of the ICAO Convention. Such utilization needs to be regulated by the relevant national authorities.” ECC, Licensing and operation of GSM base stations on board aircraft, ICAO Comments on ECC/DEC/(06)07 at 3 (Feb. 2006), available at: http://www.icao.int/safety/acp/ACPWGF/ACP-WG-F-15/ACP-WGF15-WP04-ICAO%20comments%20on%20RA6(06)04%20Draft%20Decision%20GSM%20on%20board%20aircraft%20Rev1.doc.
84 For foreign-registered aircraft, the Part 87 aircraft station license would authorize Airborne Access System operation only and would not cover other aircraft station functions.
85See supra ¶ 59.
86See generally comments in Commission WT Docket No. 04-435 and FAA Docket No. FAA-2012-0752. For example, commenters raised safety and social etiquette concerns. See, e.g,. Transport Workers Union of America Comments, WT Docket No. 04-435 at 6-8.
87See FAA, Study on the Use of Cell Phones on Passenger Aircraft, DOT/FAA/AR-12/30, at 1, 8- 9 (July 2012), available at: http://content.aristotle.com/CEA/PassengerAircraft.pdf.
88 Pub. L.No.103-414, 108 Stat. 4279 (codified as amended in sections of 18 U.S.C. and 47 U.S.C.).
89See 47 U.S.C. § 1002(a)(1-4). The Commission has subsequently taken several actions to implement CALEA requirements. See Communications Assistance for Law Enforcement Act and Broadband Access and Services, Notice of Proposed Rulemaking and Declaratory Ruling, ET Docket No.04-295, RM-10865, 19 FCC Rcd 15676, 15678-91, ¶¶ 5-29 (2004) (discussing the history of the Commission’s CALEA implementation actions and orders).
90 A “telecommunications carrier”is defined by CALEA as “a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for hire.” 47 U.S.C. § 1001(8). Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Second Report and Order, 15 FCC Rcd 7105, 7110 (2000). The Second Report and Order noted that the legislative history contains examples of the types of service providers subject to CALEA: local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, providers of personal communications services, satellite-based service providers, cable operators, and electric and other utilities that provide telecommunications services for hire to the public, and any other wireline or wireless service for hire to the public. Id. at 7111 [other history omitted]. The Communications Act, as amended, also extends the term to commercial mobile service providers generally. See 47 U.S.C. § 332(d).
91See Communications Assistance for Law Enforcement Act and Broadband Access and Services, ET Docket No. 04-295, First Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989, 15001, ¶ 24 (2005). CALEA also identifies a telecommunications carrier as “a person or entity engaged in providing wire or electronic communication switching or transmission service to the extent that the Commission finds that such service is a replacement for a substantial portion of the local telephone exchange service and that it is in the public interest to deem such a person or entity to be a telecommunications carrier for purposes of this title.” 47 U.S.C. § 1001(8)(B)(ii). The Commission interpreted this provision to encompass facilities-based broadband Internet access and interconnected VoIP providers.
92See Boeing Reply Comments in IB Docket Nos. 05-20 and 12-376 at 18-19 (citing numerous examples of the Commission relying on agreements to address law enforcement concerns).
93See, e.g., Panasonic Application Narrative at 19, IBFS File No. SES-LIC-20100805-00992 (“Panasonic is engaged in active discussions with U.S. law enforcement officials regarding lawful interception (“LI”) and network security functionality to be deployed in the eXConnect System. Panasonic has engaged a CALEA-compliant equipment vendor to implement its LI solution, which will be in place before the commencement of commercial operations. In addition, Panasonic is implementing additional functionality subject to final agreement with U.S. law enforcement.”); Letter from Carlos Nalda, Esq., Counsel to Panasonic Avionics Corporation, to Marlene H. Dortch, Secretary, Federal Communications Commission, IB Docket Nos. 05-20 and 12-376, dated June 30, 2012 at 3 (operators “have uniformly engaged in direct consultations with law enforcement to develop appropriate capabilities consistent with their system characteristics and service offerings.”).
94 Letter from Karis Hastings, Esq., Counsel for Gogo LLC, to Marlene H. Dortch, Secretary, Federal Communications Commission, in IB Docket Nos. 05-20 and 12-376, July 20, 2012 at 2 (noting that in designing its terrestrial-based 800 MHz Air-Ground network, Gogo worked closely with law enforcement to incorporate functionalities and protections that would serve the public interest and national security interests).
1See 5 U.S.C. § 603.
2See 5 U.S.C. § 603(a).
1See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2See 5 U.S.C. § 603(a).
4 5 U.S.C. § 604(a)(3).
5 5 U.S.C. § 601(6).
6 5 U.S.C. § 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.”
7 15 U.S.C. § 632.
8 47 C.F.R. § 1.2110(f)(2)(ii).
9 47 C.F.R. § 1.2110(f)(2)(iii).
10See Letter to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated August 10, 1999.
11 Aircraft station licensees would be required to file for a modification of their existing aircraft station or fleet licenses on FCC Form 605 to include the newly designated airborne mobile communications authorization. To the extent that an aircraft operator does not have an aircraft station license, that aircraft operator would be required to apply for an aircraft station license using Form 605 in order to operate an Airborne Access System.
12 13 C.F.R. § 121.201, NAICS code 517210.
13 U.S. Census Bureau, 2002 NAICS Definitions, 517211 Paging;available at http://www.census.gov/cgibin/ sssd/naics/naicsrch?code=517211&search=2002%20NAICS%20Search; U.S. Census Bureau, 2002 NAICS Definitions, 517212 Cellular and Other Wireless Telecommunications available at http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517212&search=2002%20NAICS%20Search. .
14 13 C.F.R. § 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS).
15 U.S. Census Bureau, Subject Series: Information, Table 5, “Establishment and Firm Size: Employment Size of Firms for the United States: 2007 NAICS Code 517210” (issued Nov. 2010).
16Id. Available census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “100 employees or more.”
17Trends in Telephone Service, at tbl. 5.3.
19 13 C.F.R. § 121.201, NAICS code 517210.
21 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, Trends in Telephone Service at Table 5.3, Page 5-5, available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-301823A1.pdf (Sept. 2010) (Trends in Telephone Service). This source uses data that are current as of October 13, 2008.
22Trends in Telephone Service at Table 5.3, Page 5-5.
23See generally An Inquiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems; and Amendment of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems, Report and Order, CC Docket No. 79-318, 86 F.C.C.2d 469 (1981).
24See Cellular Rural Service Areas Auction Closes; Winning Bidders Announced, Public Notice, 17 FCC Rcd 10582 (2002).
25See Auction Of Cellular Unserved Service Area License Closes; Winning Bidder Announced for Auction 77, Public Notice, 23 FCC Rcd 9501 (2008).
26See Amendment of Parts 20 and 24 of the Commission’s Rules – Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap et al., WT Docket No. 96-59, Report and Order, 11 FCC Rcd 7824, 7850–52 ¶¶ 57–60 (1996) (PCS Report and Order); see also 47 C.F.R. § 24.720(b).
27SeePCS Report and Order, 11 FCC Rcd at 7852 ¶ 60.
28SeeAlvarez Letter 1998.
29See Entrepreneurs’ C Block Auction Closes, Public Notice, DA 96-716 (1996); Entrepreneurs C Block Reauction Closes, Public Notice, 11 FCC Rcd 8183 (1996).
30See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997).
31See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (1999). Before Auction No. 22, the Commission established a very small standard for the C Block to match the standard used for F Block. Amendment of the Commission’s Rules Regarding Installment Payment Financing for Personal Communications Services (PCS) Licensees, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15,743, 15,768 ¶ 46 (1998).
32See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (1999).
33See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd 2339 (2001).
34See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20 FCC Rcd 3703 (2005).
35See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71, Public Notice, 22 FCC Rcd 9247 (2007) (Auction No. 71 Public Notice).
36Auction No. 71 Public Notice, 22 FCC Rcd 9247.
37See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, AU Docket No. 08-46, Public Notice, 23 FCC Rcd 7496 (2008) (Auction No. 78 Public Notice).
38Auction No. 78 Public Notice,23 FCC Rcd 7496 .
39See Auction of Advanced Wireless Services Licenses Scheduled for June 29, 2006; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction No. 66, AU Docket No. 06-30, Public Notice, 21 FCC Rcd 4562 (2006).
40See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC Rcd 25162, App. B (2003), modified by Service Rules for Advanced Wireless Services In the 1.7 GHz and 2.1 GHz Bands, Order on Reconsideration, 20 FCC Rcd 14058, App. C (2005).
41See Auction of Advanced Wireless Services Licenses Closes; Winning Bidders Announced for Auction No. 66, Public Notice, 21 FCC Rcd 10521 (2006) (Auction No. 66 Public Notice).
42See Auction No. 66 Public Notice,21 FCC Rcd 10521.
43See Auction of AWS-1 and Broadband PCS Licenses Rescheduled for August 13, 2008; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 78, AU Docket No. 08-46, Public Notice, 23 FCC Rcd 7496, 7499. Auction 78 also included an auction of broadband PCS licenses.
44See Auction of AWS-1 and Broadband PCS Licenses Closes, Winning Bidders Announced for Auction 78, Down Payments Due September 9, 2008, FCC Forms 601 and 602 Due September 9, 2008, Final Payments Due September 23, 2008, Ten-Day Petition to Deny Period, Public Notice, 23 FCC Rcd 12749, 12749-65 (2008).
45See Reallocation and Service Rules for the 698-746 MHz Spectrum Band (Television Channels 52-59), GN Docket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Channels 52-59 Report and Order).
46Seeid. at 1087-88 ¶ 172.
47Seeid. at 1087-88 ¶ 172.
48Seeid. at 1088, ¶ 173.
49 See Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, WTB, FCC (Aug. 10, 1999) (Alvarez Letter 1999).
50 See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17272 (2002).
51See Lower 700 MHz Band Auction Closes, Public Notice, 18 FCC Rcd 11873 (2003).
52See Lower 700 MHz Band Auction Closes, Public Notice, 18 FCC Rcd 11873 (2003).
53 Service Rules for the 698-746, 747-762 and 777-792 MHz Band, WT Docket No. 06-150, Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephone, WT Docket No. 01-309, Biennial Regulatory Review – Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services, WT Docket No. 03-264, Former Nextel Communications, Inc. Upper700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 06-169, Implementing a Nationwide, Broadband Interoperable Public Safety Network in the 700 MHz Band, PS Docket No. 06-229, Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State, and Local Public Safety Communications Requirements Through the Year 2010, WT Docket No. 96-86, Second Report and Order, 22 FCC Rcd 15289 (2007) (700 MHz Second Report and Order).
54See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (2008) (700 MHz Auction Public Notice).
55700 MHz Second Report and Order, 22 FCC Rcd 15289.
56See700 MHz Auction Public Notice, 23 FCC Rcd 4572.
57 47 C.F.R. §§ 90.810, 90.814(b), 90.912.
5847 C.F.R. §§ 90.810, 90.814(b), 90.912.
59 SeeAlvarez Letter 1999.
60See 900 MHz Specialized Mobile Radio Service Spectrum Auction Closes: Winning Bidders Announced, Public Notice, 19 FCC Rcd 3921 (2004).
61See Correction to Public Notice DA 96-586 FCC Announces Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz SMR in Major Trading Areas, Public Notice, 18 FCC Rcd 18367 (1996).
62See Multi-Radio Service Auction Closes, Public Notice, 17 FCC Rcd 1446 (2002).
63See 800 MHz Specialized Mobile Radio (SMR) Service General Category (851-854 MHz) and Upper Band (861-865 MHz) Auction Closes; Winning Bidders Announced, Public Notice, 15 FCC Rcd 17162 (2000).
64See 800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd 1736 (2000).
65See generally 13 C.F.R. § 121.201, NAICS code 517210.
66 Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (WCS), GN Docket No. 96-228, Report and Order, 12 FCC Rcd 10785, 10879 ¶ 194 (1997).
67SeeAlvarez Letter 1998.
68 13 C.F.R. § 121.201, NAICS code 334220.
69 U.S. Census Bureau, 2007 Economic Census, Sector 51, 2007 NAICS code 334220 (rel. Oct. 20, 2009), http://www.census.gov/econ/industry/ec07/a334220.htm.
70 We note that any FAA actions related to the issues in this proceeding, such as necessary certification and approval of equipment, are outside the Commission’s scope, and we emphasize our commitment to working closely with the FAA in areas over which it has more appropriate jurisdiction.