FCC Eases Licensing for Broadband Access on Planes

By J. Bradford Currier and Marty Stern

Internet access on commercial and private aircraft will likely become more widespread under a recent Order and Notice of Proposed Rulemaking released by the Federal Communications Commission. The FCC’s action creates new technical and licensing rules for what it terms “Earth Stations Aboard Aircraft” (“ESAA”), small aircraft-mounted antennas that communicate with satellites tied to ground-based Internet access networks allowing for the provision of broadband Internet access on-board aircraft. The new ESAA licensing procedures, which include detailed technical requirements for ESAA systems intended to prevent radio interference among ESAA systems and existing satellite systems, will replace an ad hoc approval process for in-flight satellite-based Internet services in place since 2001. The FCC expects that the new rules will allow it to process ESAA apllications up to 50 percent faster and meet growing consumer demand for Internet access while traveling.

Under the new rules, airlines and other parties may apply for a blanket license for a fleet of aircraft and an ESAA network, as well as individual “airborne terminals.” The ESAA network must operate under the direct control of a Network Control and Monitoring Center (“NCMC”), which may be located outside the U.S., with a 24/7 contact within the U.S. that can cause an ESAA aircraft terminal to stop transmitting in the event of a malfunction. The rules, which generally apply to U.S. registered aircraft, also authorize (subject to certain coordination requirements) the operation of U.S.-licensed ESAA systems over international waters and in or near foreign airspace. Given the absence of internationally-recognized parameters for ESAA systems, the FCC will require an ESAA license for the operations of ESAA systems aboard foreign-registered aircraft in the U.S. and its airspace. The FCC indicated that it will license the ESAA systems of foreign airlines and others operating foreign-registered aircraft in the U.S. under the same terms and technical rules as U.S.-registered aircraft. In addition, the FCC made clear that ESAA operators providing facilities-based broadband Internet access or interconnected VoIP services must comply with law enforcement assistance requirements under the Communications Assistance for Law Enforcement Act (“CALEA”), though it declined to adopt a request of the U.S. Departments of Justice and Homeland Security that would have required the use of U.S. ground stations for ESAA operations within or adjacent to U.S. borders.

The new rules allocate ESAA on a primary basis in certain sections of the space-to-Earth spectrum band and on an unprotected basis in other space-to-Earth spectrum sections. The new rules also allocate ESAA on a secondary basis in the Earth-to-space spectrum band, although the FCC seeks comment on whether this allocation should be elevated to primary to place ESAA on equal footing with other mobile broadband Internet services. ESAA licensees will be required to coordinate their operations with satellite and other incumbent services in order to avoid interference. 

The new rules come on the heels of the Federal Aviation Administration’s announcement earlier this year that it will reexamine the current rules governing passenger in-flight use of personal electronic devices such as e-readers and tablets. The FCC previously indicated that it also supports relaxing the rules governing in-flight use of personal electronic devices. While the FCC’s action is expected to facilitate rapid broadband deployment on airlines, some note that technical limitations may limit the ability to use ESAA for streaming and other high-bandwidth services for the near future.

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