The use of mobile telephones on aircraft is currently prohibited. However, new technology has made it possible for these prohibitions to be lifted. BLG has been advising OnAir, which has developed one such product for installation on commercial aircraft. This article examines the regulatory challenges posed by the use of mobile telephones on aircraft and the new technology.
The use of mobile telephones on board aircraft in flight is currently prohibited by aircraft operators and national civil aviation authorities. These prohibitions are the result of concerns about the risk of interference with aircraft avionic and ground mobile networks.
However, a number of products are now under development which will allow GSM mobile telephones to operate on board aircraft without causing harmful interference either to aircraft systems or (a separate requirement of telecommunications regulators) to terrestrial mobile networks. This technology works by requiring passengers’ mobiles to communicate at very low power levels with an onboard base station (signals to and from the ground then being transmitted via a satellite link), while at the same time a network control unit prevents any mobile (whether GSM or otherwise) from being able to detect and communicate with ground networks.
One such product, designed for installation on any commercial aircraft, has been developed by OnAir, a joint venture between SITA and Airbus. Barlow Lyde & Gilbert has been advising OnAir on a number of the regulatory issues which arise.
In particular, in order to be able to operate, the new systems will not only have to comply with relevant airworthiness certification requirements, but will also require an international legal consensus to be reached on the appropriate licensing regime – an issue which cuts across both telecommunications law and international aviation law. OnAir has been heavily involved in the work of national telecommunications regulators to develop (particularly at a European level) a "horizontal" regulatory approach that would enable such systems to be operated with a minimal administrative burden. This approach requires the system (including use of any necessary spectrum) to be authorised (whether by means of a licence or exemption) by the state of registration of the aircraft. The alternative would be to require authorisation of the system by every state into or over which the aircraft might fly. This would not only be administratively burdensome but, in the event that neighbouring countries were unable to authorise access to consistent spectrum bands, could lead to problems with service continuity or even "blackholes" in coverage.
Quite apart from the practical benefits, introduction of a system of "horizontal" regulation for onboard GSM systems has the advantage that it works with the grain of longstanding international aviation law. The starting point here is the Chicago Convention of 1944 ("Chicago"), which is the basis of international aviation law. Art. 1 of Chicago confirms that every state has sovereignty over the airspace above its territory. That remains the underlying legal principle. However, that is subject to all the succeeding provisions of the Convention in which the contracting states have agreed to fetter that absolute sovereignty in the interests of international aviation. Indeed, without such agreements, the civil aviation industry could not exist as it does today. Among such provisions is Article 30 (a) of Chicago, which provides as follows.
Aircraft Radio Equipment
(a) ‘ Aircraft of each contracting State may, in or over the territory of other contracting States, carry radio transmitting apparatus only if a licence to install and operate such apparatus has been issued by the appropriate authorities of the State in which the aircraft is registered. The use of radio transmitting apparatus in the territory of the contracting State whose territory is flown over shall be in accordance with the regulations prescribed by that State…" [emphasis added]
It is to be noted that Article 30 refers to any radio transmitting apparatus installed on an aircraft and does not differentiate between any different usages to which such radio equipment in question may be put. Thus it applies as much to onboard base stations of the type utilised by mobile telephony onboard service providers as it does to the traditional radio equipment utilised by the flight crew. Thus Article 30 points strongly in the direction of a system of horizontal regulation being applied to the former (just as it already is to the latter). This conclusion is bolstered by the terms of Article 33 of Chicago, which provides that "licences… issued by the contracting State in which the aircraft is registered shall be recognised as valid by the other contracting States…". The effect of this is to bar states overflown from imposing a system of secondary licensing on foreign registered aircraft operating into its territory.
The rights of a country overflown to protect its own territorial networks from interference are preserved by Article 30, which expressly states that the use of radio transmitting apparatus within the territory of that state must be in accordance with any regulations prescribed by that State. This enables States overflown to impose operating or technical regulations designed to ensure that radio apparatus carried by aircraft do not create harmful interference. In the UK we already have such regulation in the form of the Wireless Telegraphy (Visiting Ships and Aircraft) Regulations. It does not, however, authorise the imposition of any system of secondary licensing or frequency authorisation.
The approach adopted by the Chicago Convention is complemented in the field of international telecommunications law by parallel provisions within Article 18 of the International Telecommunications Union Radio Regulations. Article 18 of the Radio Regulations provides that radio transmitting stations are to be licensed by "the country to which the station in question is subject" and makes it clear that, in the case of a radio transmitting station on board an aircraft, this is the state of registry of the aircraft. International aviation and telecommunications laws are therefore wholly consistent with each other in this regard. The "horizontal" regulation framework proposed by OnAir and others for the regulation of onboard GSM systems is therefore one contemplated (and indeed mandated) by the Chicago Convention and ITU Radio Regulations.
Within Europe at least, this argument and approach appears to have gained widespread acceptance. The European Conference of Postal and Telecommunications Administrations (CEPT) has published a draft decision which would establish such a framework. It is anticipated that within the next few months this decision will be formally adopted and should then be implemented at a national level across Europe. The days of being able to phone home or office from one’s aircraft seat are therefore becoming markedly closer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
