Imagine boarding a cross-country flight and finding yourself next to someone who will be talking on his or her cell phone for the next three hours. Would it make a difference if you knew ahead of time that the flight allowed voice calls? This scenario is exactly what the Department of Transportation (DOT) is proposing.

Just last week, proposed rules by DOT’s Office of the Secretary of Transportation (OST) hit the Federal Register (FR), with comments due by February 13, 2017. According to the FR notice, DOT designed the proposals to prevent passengers “from being unwillingly exposed to voice calls within the confines of an aircraft,” under the assumption that consumers ordinarily purchase tickets with the “reasonable expectation that voice calls will not be permitted on flights within the United States.” Considering customer comfort, DOT proposes not to ban voice calls on flights but rather to require ticket sellers and airlines to provide advance notice to passengers if flights permit voice calls.

Despite the fact that DOT issued this proposal, three regulatory bodies – DOT, the Federal Aviation Administration (FAA), and the Federal Communications Commission (FCC) have varying responsibilities when it comes to regulating aircraft communications. The FCC presides over technical issues while the FAA covers safety issues and DOT’s OST handles consumer protection issues.

So, how did we get to this point? Back in 1991, the FCC restricted the use of mobile devices on aircraft that operate on certain commercial mobile frequencies. As such, U.S. airlines require that passengers either disable their mobile devices or use airplane mode while airborne.

In December 2013, the FCC proposed rules that would enable aircraft operators to permit passengers to make or receive calls onboard aircraft using commercial mobile spectrum bands. Two months later, DOT’s OST sought comment on whether to ban voice calls on passengers’ mobile wireless devices on commercial aircrafts. A majority of the 1,700 commenters supported a ban, expressing concern that voice calls in the presence of others would be disturbing, create “air rage,” place additional strains on flight attendants, and intrude on customers’ privacy and opportunities to sleep.

Fast forward to the end of 2016 and Wi-Fi is more ubiquitously available to passengers on flights. Many US airlines now have the capacity to allow passengers to make and receive voice calls onboard over Wi-Fi, which the FCC does not prohibit. While OST is unaware of any airline carriers currently permitting voice calls, OST recognizes that airlines’ technical capacity to allow voice calls is increasing as costs are decreasing, which can result in both a higher number and duration of calls, thereby causing passenger discomfort.

As a result, DOT now proposes to regulate voice calls onboard aircraft to protect customers and prevent “air rage.” The rules would only apply to passenger-supplied devices, regardless of whether the call occurs on a commercial mobile frequency or Wi-Fi. DOT further adds that the airlines are free to ban voice calls as a matter of policy, allow voice calls on certain flights or during certain portions of flights, or create voice call free zones. The key takeaway is that DOT acknowledges that US consumers expect a voice-call free cabin.

OST seeks comment on this proposal as well as its proposed definitions of mobile wireless device and voice calls. OST defines “mobile wireless device” as any portable wireless telecommunications device not provided by the covered airline that is use for the transmission or reception of voice calls. OST defines “voice calls” as an oral communication made or received by a passenger using a mobile wireless device.

OST proposes that such rules apply to passenger flights in scheduled and charter air transportation, not small entities (those with designated seating capacity of less than 60 seats). OST seeks comment on whether the rules should apply to small aircraft, commuter carrier flights, single entity charter flights, air ambulances and on-demand air taxi operations.

OST also proposes that the rules apply not just to the carriers but also to the sellers of the air transportation, with the intent of providing consumers the opportunity to learn in advance that they are considering purchasing a flight which permits voice calls.

OST’s proposal follows DOT’s code-share disclosure rule, which is an arrangement where a flight is operated by a carrier other than the airline whose identity is used in the schedule and on the tickets. This disclosure ensures that customers are aware of the identity of the airline actually operating their flight. Similarly, by requiring airline ticket sellers to disclose their voice call policies on both flight itinerary and schedule displays (including websites and mobile applications), consumers can make an informed choice about whether to book a flight which allows voice calls.

Carriers should consider whether such proposed rules would have any implications.  Just as consumers have to think twice about whether they would prefer notice of airlines allowing voice calls, carriers should consider whether they too would be subject to either the notice requirements or whether such a policy would affect the services they offer their customers.  Given the fate of the FCC proposal, time will tell whether DOT may face similar challenges – not just with the notice requirements but with whether a proposal considering voice calls can even survive.