Reauthorization: should the FAA’s power to regulate passenger onboard devices be made clearer?

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FAA Regulation on Personal Electronic Devices (PEDs)

FAA Reauthorization Should Include Clarification on this Power

Congress, more specifically Chairman Shuster and his House Transportation & Infrastructure Committee and the Aviation Subcommittee, chaired by Rep. LoBiondo, is hard at work writing (rewriting AIRR) to reauthorize the FAA. Much energy has been devoted to the privatization/corporatization/transfer of ATO to a federally chartered not-for-profit corporation.

Perhaps lost in all of that noise is a substantive issue for reauthorization and the FAA’s statutory powers. Congress entrusted the FAA with the authority to issue certificates of airworthiness for aircraft, aircraft engine, or propeller (49 USC §44704). But not the items which passengers bring on board!

faa electronic devicesThe below list of news stories involves the suitability of devices brought on board an airplane. It would be a stretch to say that §44704 authorizes the FAA to preclude these electronic devices from being carried on board.

The FAA’s authority was not really tested, largely because the US carriers wanted an excuse to interdict these personal items, as to the initial positions on PEDs, laptops, etc. The faa batterymanufacturers of the PEDs and laptops hovered around the smart phone debate; the DoT issued, but never completed, an NPRM about on board cellphone use (under color of consumer protection). Samsung did not attempt to challenge the FAA orders about its Galaxy Note 7 for obvious reasons.

The TSA recently banned any personal electronic devices larger than a smartphone (laptops, tablets, game consoles, cameras and portable DVD) in the passenger cabin. The order applies to nine airlines that fly out of 10 airports in the Middle East and Northern Africa. The HSD action is based on security and not any onboard personal safety problems; so, the FAA authority is not involved.

However, this real case poses an excellent hypothetical about the limits of FAA’s §44704. Remove the TSA’s security justification and substitute a technical flaw like the Samsung situation; assume that the dangerous product has only been sold overseas. Could the FAA support the issuance of an order banning a PED or other personal item under §44704? That’s a close question and an emergency appeal of the FAA action by the foreign countries/their carriers/the manufacturers could result in a very embarrassing and potentially damaging decision.

Chairmen Shuster and LoBiondo: you might want to ask your staff to consider how best to clarify the FAA’s powers about the “airworthiness” as to these carry-ons? Questions might include:

  • What criteria should be used?
    • Fire hazard?
    • Interference with airplane systems?
    • Passenger convenience (the Sec. Foxx NPRM)?
  • What process?
  • Given that these cases usually involve emergencies, what of notice and comment?

and/or

  • How should the interdiction be enforced?
    • At TSA checkpoints? (detract from their security function?) Advantage: X-ray machine could detect a PED?
    • At airline check-in (so the passenger can pack the item in baggage?)
    • Should/could the manufacturer have to mark prohibited items? (difficult to address with a moving target; the product is sold and then a problem is determined)

Not as intellectually challenging as transforming the FAA, but a substantive improvement needed so that it is clear that the FAA has the power to protect these devices which are not connected to the aircraft, but may pose risks to passengers. That seems to be an important question.


• U.S. confirms ban on large electronics in cabins on flights from 10 airports

• Safety warning after passenger’s headphones explode on Beijing to Melbourne flight

• Galaxy Phone Fires—FAA reaction

• PED decision leads Professor to Urge Regulatory Reform, beyond Aviation Safety

• Senator Sends FAA a Message on Electronic Devices That Places Passenger Convenience Over Aviation Safety

• Progress in PED debate—hopefully driven by Technical Safety Considerations

• Cybersecurity Threat to Aircraft is being addressed by FAA and panel


 

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