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D.C. Cir. Upholds Your Right to Use a Kindle During Takeoff

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By Mark Wilson, Esq. on May 11, 2015 3:56 PM

Back in 2013, the FAA blissfully relaxed restrictions on when personal electronic devices (PEDs) could be used on airplanes. Prior to October 31, 2013, passengers had to wait until the plane was above 10,000 feet before using things like eBook readers and portable video game players.

That all changed -- because those rules weren't grounded in reality -- but the Association of Flight Attendants challenged the law. Last week, the D.C. Circuit Court of Appeals dismissed the challenge.

You May Now Use Approved Devices

It's not likely that flight attendants care a whole lot about the Administrative Procedure Act; instead, it seemed more plausible that they were looking for a way to invalidate the new rule. Flight attendants were really concerned that PEDs could bounce around during takeoff and landing, reported the Los Angeles Times.

Nevertheless, that's not a valid reason to challenge the rule, so they stuck with the APA, which requires a public notice-and-comment period before new agency regulations can be implemented. The FAA's notice altering the rules for PEDs amounted to a change in regulations regarding carry-on baggage, they claimed, meaning the new rule -- which didn't go through a notice period -- was invalid.

We Hope You Enjoyed Your Stay at the D.C. Circuit

Not so fast, said the D.C. Circuit. Only a "final agency action" can be challenged on APA grounds. The FAA's new rule doesn't qualify; it's "nothing more than an internal guidance document and does not carry the 'force and effect of law,'" the court said. In particular, it creates no rights or obligations and imposes no penalties. It's more akin to an interpretation of an existing regulation than a new regulation.

In particular, airlines are free to comply with the notice or not. The regulation states that PEDs can't be used if they interfere with an airplane's navigation or communications. The interpretation has long been that PEDs shouldn't be used during takeoff and landing due to the threat of interference, but all the FAA did in 2013 was change its guidance. The rule remains the same. (And by the way, did you know you can use portable voice recorders and electric shavers during a flight?)

The fact that almost every airline allows the use of small PEDs at all times only reflects that they've been chomping at the bit to allow them for years because the rest of us were tired of having to put our Kindles away for takeoff and landing. Every airline, though, still retains the ability to restrict PED use. (And we can't wait for the day when they monetize it, as they have everything else. Want to use your Nintendo DS before 10,000 feet? Five bucks. Why? Because we can.)

Finding that the notice wasn't a final regulation, the D.C. Circuit dismissed the flight attendants' case for lack of jurisdiction.

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