Monthly Archives: February 2014

PROPOSED LEGISLATION PROHIBITING PHONE CALLS IN-FLIGHT

The Federal Communications Commission (FCC) recently issued a Notice of Proposed Rulemaking that would allow passengers to make calls and use their cellular data plans once an aircraft reaches 10,000 feet.  Restrictions to phone calls would remain during takeoffs and landings.  The FCC is currently in the process of accepting comments in its Notice of Proposed Rulemaking.

The FCC’s proposed rule has met significant opposition from the general public, air carriers and Congress.  In Congress, several bills prohibiting the use of phones in-flight have been introduced.  A bill entitled the “Prohibiting In-Flight Voice Communications on Mobile Wireless Devices Act of 2013,” H.R. 3676, was introduced by Representative Bill Shuster (R-PA) on December 9, 2013 and referred to the Subcommittee on Aviation on December 10, 2013.  The bill directs the Secretary of Transportation to issue regulations that prohibit individuals on an aircraft from engaging in voice communications using a mobile device during a flight in scheduled passenger interstate or intrastate transportation.  The bill would, however, allow crew members, flight attendants and law enforcement personnel to make phone calls if needed.

Another bill, similar to H.R. 3676, was introduced by Senator Lamar Alexander (R-TN) on December 12, 2013.  The “Commercial Flight Courtesy Act” would prohibit an individual from engaging in voice communications through a mobile device while onboard an aircraft in scheduled passenger interstate or intrastate air transportation.  The Senate bill makes exceptions for crew members and chartered or private flights.

In other areas, the Association of Flight Attendants-CWA is opposed based upon the potential for creating an unsafe environment.  Several U.S. carriers, including Delta, JetBlue, Southwest and United, have publicly stated that regardless of the FCC’s decision on the rule, the carriers will not allow calls in flight.  To allow for in-flight cellular use, carriers would have to install expensive equipment and add hundreds of pounds of extra weight to each aircraft.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

DISPUTE OVER NORWEGIAN AIR INTERNATIONAL PERMIT APPLICATION

On December 2, 2013, Norwegian Air International Limited (Norwegian International), a foreign air carrier of Ireland, filed an application with DOT to conduct foreign scheduled and charter air transportation of persons, property, and mail to the full extent permitted under the U.S. – E.U. Open Skies Agreement (which was amended in 2011 to include both Iceland and Norway).

The application has received significant scrutiny across the aviation industry.  Opponents such as Airlines for America, ALPA, the European Cockpit Association, United Air Lines, Delta Air Lines, US Airways, and American Airlines argue that Norwegian International is an affiliate of Norwegian carrier Norwegian Air Shuttle and is being established in Ireland with the sole purpose of evading the social laws of Norway in order to lower the wages and working conditions of its crews.  There is also concern that Norwegian International does not hold an Air Operator’s Certificate from Ireland (Norwegian International’s application for an AOC remains pending).

According to DOT filings, Norwegian International plans to operate transatlantic flights with European pilots who are recruited in Singapore and based in Thailand, thereby operating outside the realm of the collective labor agreement that covers Norwegian Air Shuttle pilots in Norway.  ALPA and several U.S. carriers argue that the proposed operations and structure of Norwegian International are contrary to the provisions of Article 17 of the U.S. – E.U. Air Transport Agreement, which expressly prohibits the establishment of flags of convenience to evade labor protections (thus establishing a competitive advantage in the marketplace).

Proponents of the application, including Norwegian International, Broward County Aviation Department, and the City of Orlando, argue that the proposed operations are within the public interest and offer a pro-competitive, pro-consumer, and pro-growth approach that is innovative and geared to increase international service to several traditionally underserved U.S. markets such as Fort Lauderdale and Orlando, Florida.

DOT, on January 30, 2014, posted a summary of information about the current and planned long-haul operations of Norwegian Air Shuttle and its affiliated companies that was originally provided by the European Delegation to a recent U.S. – E.U Joint Committee meeting.  The Department established a procedural schedule for public comments on this summary.  Answers must be filed by February 13, 2014 and replies must be filed by February 20, 2014.

We will continue to keep you updated on the status of this proceeding.  All of the applicable filings are available in Docket DOT-OST-2013-0204.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

DOT Seeks Comments on Potential U.S. Ban on Cell Phone Use; Seeks Information on Financial Impact to Foreign Carriers

On Friday, February 14, 2014, the U.S. Department of Transportation (DOT) announced that it is seeking public comment regarding a possible ban on voice communications via wireless devices during passenger flights operating within, originating from, or traveling to the United States. The DOT is specifically seeking input as to whether allowing passengers to engage in voice communications on aircraft would constitute an unfair practice to consumers, and has specifically sought comments from foreign air carriers who currently permit voice calls. Interested parties will have thirty (30) days after the date of publication of this item in the Federal Register to submit comments to the DOT.

The DOT’s request coincides with a rulemaking proceeding initiated by the U.S. Federal Communications Commission (FCC) in late 2013 that may result in the elimination of its current ban on the use of mobile devices on passenger flights for voice communications. The FCC’s rulemaking considers whether new technologies can effectively prevent harmful interference to ground wireless networks resulting from voice calls onboard aircraft — which was the original reason for the FCC’s ban. The FAA relaxed rules on the use of personal electronic devices (PEDs), not including cell phones used for voice communications, during most stages of flight in November 2013 after determining that such usage no longer posed a threat to the safe operation of aircraft. The DOT is now considering a prohibition on voice calls from aircraft based on consumer protection grounds.  Numerous individuals and groups have raised concerns that such practices would be disruptive to air travel.

The DOT has noted that possible outcomes of any rulemaking include taking no action (thereby leaving the decision to allow voice calls to each air carrier) or prohibiting all voice calls on all flights in the U.S. The DOT has sought specific commentary on the following issues from Part 121, 125, 129 and 135 carriers:

  •  Whether a blanket ban on voice communications is necessary, and why;
  • What benefits may be derived from allowing voice communications;
  • Whether air carriers should be allowed  to determine whether voice calls may be permitted and how they may be permitted;
  • Whether a proposed ban should include all in flight voice communications, or only certain types;
  • Whether a definition of mobile wireless device should be included in any proposed ban;
  • Whether text-to-speech technologies should be considered exempt from any proposed ban, particularly for passengers with disabilities, and why;
  • When a proposed ban might apply (i.e. only once the aircraft door is closed);
  • Whether a proposed ban should include exceptions for personal, passenger-related emergencies, or for crewmembers, law enforcement, or other officials;
  • Any impact on consumers of allowing in-flight voice communications;
  • Any alternatives that might be available to allow consumers to avoid being subjected to voice calls on flights (e.g. creation of ‘quiet sections,’ or limitations on voice calls during certain times);
  • Whether voice communications are more or less disruptive than other behaviors that take place during passenger flights (i.e. conversations between passengers).

In addition to the above, the DOT has also requested comment from foreign air carriers that currently permit voice communications pursuant to national laws and who can provide  insight as to how such practices have impacted their ability to provide adequate air transportation and/or maintain customer satisfaction with their services.  DOT also has specifically asked what the financial impact on foreign carriers would be if a U.S. ban is imposed.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr  (esahr@eckertseamans.com  202-659-6622), or
Brett Freedson ( bfreedson@eckertseamans.com
202-659-6669)

POTENTIAL MONETARY RECOVERY FOR AIRLINES CHALLENGING PIPELINE TRANSPORTATION RATES FOR JET FUEL

On January 3, 2014, Southwest Airlines and United Air Lines filed a formal complaint with FERC, alleging that Colonial’s existing and proposed rates for pipeline transportation service are excessive.  The complaint sought reparations for past charges and a determination from FERC regarding rates going forward.  Southwest stated that it overpaid by $4.4 million over the last two years and will overpay approximately $1.8 million annually going forward under the proposed rates.  Similarly, United indicated that it overpaid by $5.4 million over the last two years and will overpay approximately $2.6 million annually going forward under the proposed rates.  Southwest and United allege that Colonial over-recovered $303 million from all customers in 2012.

On December 31, 2013, US Airways and Colonial filed a settlement agreement with FERC for approval.  Under the proposed settlement, Colonial will pay US Airways an undisclosed sum.  US Airways will forgo reparations for charges prior to January 1, 2014, but retains the right to challenge rates for service provided thereafter.

Under the Interstate Commerce Act, FERC may award reparations for the two-year period preceding filing of a complaint if FERC determines that pipeline rates have been excessive.  The Colonial pipeline system serves refineries in the Gulf Coast and Northeast regions and consumer markets throughout the Gulf Coast, Southeast, Mid-Atlantic and Northeastern states.  Airports served by Colonial include: Atlanta, Nashville, Charlotte, Greensboro, Raleigh-Durham, Dulles, Baltimore-Washington International, Newark, and potentially others.  Reparations may be available to fuel consumers who have directly or indirectly paid Colonial transportation rates or are otherwise affected by those rates, in the event FERC determines those rates are excessive.

This Eckert Seamans Aviation Blog is intended to keep readers current on matters affecting businesses and is not intended to be legal advice. If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).

DOT Fines Air Ambulance Service Provider $15,000

The DOT fined BestCare EMS, Ltd. $15,000 for overreaching its economic authority and for engaging in unfair and deceptive trade practices. BestCare is an indirect air carrier specializing in air ambulance services. BestCare does not operate flights, but instead arranges medical air transportation. BestCare also employs the emergency medical technicians and paramedics who accompany patients on flights that are operated by direct air carriers, pursuant to contracts with BestCare. The DOT allows indirect carriers to hold out, arrange and coordinate the operation of air ambulance services without a certificate, so long as they meet certain conditions. In particular, indirect carriers cannot hold themselves out to the public in a way that would create the impression that they are direct air carriers.

The DOT found that BestCare was creating the impression that it was a direct air carrier through numerous improper statements on its website.  Some examples include posting an FAA 135 Air Taxi Certificate on its website with the statement “Copies of Certification and Insurance Available upon Request.” This statement implied that BestCare operated flights and had an air carrier certificate, when in fact it did not. Other statements included “Read more about the BestCare Air Ambulance Fleet,¨ implying that BestCare operated its own fleet of aircraft, when no such fleet existed.

Organizations Lobby To Keep Funding for Contract Tower Program

Currently, the fiscal 2014 transportation funding bill (H.R.2610) provides $140 million in funding to the contract tower program. The program funds the nation’s 251 FAA contract towers, 149 of which were threatened with budget cuts last spring as part of sequestration. Fearing that funding for the towers could be vulnerable to budget cuts, industry groups recently sent a letter to the House and Senate Appropriations Committees in support of keeping the funding.

FAA Under Pressure to Speed Up Certification Process

The DOT assistant inspector general, Jeffrey Guzzetti, testified in front of the House Aviation Subcommittee regarding the FAA certification and regulation processes.  Guzzetti stated that there is a backlog of over 1,000 applications for air operator and repair station certificates which is largely the result of the FAA’s failure to have a streamlined process in place. At present, applications are dealt with on a first-come, first-served basis. The problem with this approach is that if a complex application is ahead of a less complicated one, the less complicated one is significantly delayed, even though it might be more efficient to clear that one first. The FAA is currently looking into ways to streamline the process.

Capitol Hill Putting Pressure on CBP Regarding Aircraft Searches

Eight Senate Republicans have sent a letter to the acting secretary of Department of Homeland Security (DHS) regarding the legality of CBP searches. The Senators have requested a report from DHS detailing every stop and search since 2009. As reported in our September Bulletin, industry groups and Congressman Sam Graves had sent inquiries to DOT, DHS and CBP questioning the legality of CBP searches of general aviation aircraft within US borders. The parties have voiced concerns that the searches, which are usually performed as part of cross-border drug-interdiction efforts, are being conducted on aircraft that do not conduct cross-border operations and are done without reasonable suspicion or probable cause. In addition, CBP has recently proposed making certain public records unavailable for review, including those involving the referenced aircraft stops.

FAA To Release New Sleep Apnea Policy

The FAA Federal Air Surgeon announced that the FAA plans to release a policy which will require pilots and air traffic controllers with a BMI of 40 or greater and a neck size of 17 inches or greater to undergo screening for sleep apnea prior to receiving a medical certificate. The FAA will lower the BMI over time and require other pilots to get screened for sleep apnea. Currently, the FAA requires anyone diagnosed with sleep apnea to be treated before receiving a medical certificate. The FAA has also issued special medical certificates to 4,917 pilots who are being treated for sleep apnea.