Published: February 16, 2023

Now almost a year since disputes between the Federal Aviation Administration (FAA) and telecoms settled, the 5G spectrum has continued to cause conflicts both on the ground and in the air when it comes to altimeter disruption. Last January, the long-awaited deployment of C-band 5G caused a stir in the airspace when the FAA claimed that original rollout plans were irresponsible and affected altimeter readings, prompting wireless providers to delay the use of certain 5G towers.

Today, conflicts over connectivity rage on as a new proposal from the FAA has airlines scrambling to comply. The agency announced a proposed 5G safety directive last month requiring airlines to retrofit or replace non-compliant radio altimeters in their fleets before February 2024. While this may seem like a natural next step in protecting aircraft from 5G interference, many airlines and aviation organizations are pushing back on the directive’s orders, prompting us to consider the potential legal fallout associated with the FAA’s announcement.

Let’s take a quick look at why the new proposal is generating concern and examine how it may create opportunities for litigation in the wireless space.

The FAA’s Proposal Pushback

The FAA’s January proposal was prompted by ongoing concerns about 5G interference, specifically regarding the disruption of altimeter readings that are essential in bad-weather landings. But some airline associations and fleet manufacturers feel that the February 2024 deadline does not give the industry enough time to upgrade its aircraft’s instruments properly. Airlines 4 America, which represents 10 U.S.-based carriers including United and Delta, has called for the FAA to push the deadline back, saying that a revision is necessary to “reflect technical realities and the continued safe operation of many aircraft.” They feel that fleets will not be fully prepared by next year, limiting the industry’s operations and leading to a slew of delays and cancellations.

In addition, the International Air Transport Association (IATA), representing more than 100 U.S. carriers, has reported that upgrade costs would greatly exceed the proposed $26 million estimated by the FAA; in fact, costs could grow to exceed $600 million. They also warned that most airlines would likely fail to meet the proposed deadline, citing supply chain disruption, certification delays, and logistical complications as possible barriers to full implementation. These concerns have been echoed by the Aerospace Industries Association, which claims that the FAA hasn’t provided “sufficiently robust controls to ensure safety as both aviation operations and wireless services co-evolve.”

On the other hand, the Cellular Telecommunications and Internet Association (CTIA), which represents Verizon and AT&T, and telecoms alike feel that the FAA proposal is appropriate and should not be revised. The organization said, “By requiring accountability, the FAA is taking important steps to ensure radio altimeter performance is more resilient while enabling timely C-Band 5G deployment.”

But by creating an aggressive proposal that aims to hold these entities accountable, the FAA is also creating a hostile environment in the wireless space that has the potential to be ripe with disputes over connectivity and compliance.

Potential for Disputes

When looking at the current landscape, it is clear that regulatory bodies need to make a move regarding 5G and altimeter standards in this new age of connectivity. As the rollout of this spectrum continues, airlines are going to need to adapt accordingly to maintain operations and prepare for future generations of wireless. But these adaptations need to occur in due time as legal issues will undoubtedly begin to arise if the deadline proves to be too soon.

If the airline industry’s operations are delayed and eventually halted because of this deadline, you can expect airlines and consumers alike to begin threatening legal action. We have already seen the type of fallout that can come because of extreme delays after the Southwest airlines meltdown this past holiday season has prompted multiple class action filings from frustrated consumers. This proposal could dramatically affect the entire structure of the industry and bring similar suits; without regulatory action regarding altimeters, conflicts around wireless technology in the airspace will only continue to grow and be exasperated by further 5G rollouts, supply chain disruptions, and Federal Communications Commission (FCC) oversight. We could also see patent disputes arise as airlines attempt to alter their technology to adapt to 5G interference; companies like FreeFlight have already created new patent-pending altimeter technology, and other aviation innovation purveyors are sure to follow.

Further 5G rollouts also present another point of contention for the FCC, the aviation industry, and the FAA; T-Mobile and other wireless providers are set to deploy more C-band 5G service at the end of this year, on a frequency even closer to those used by aircraft safety equipment. But if current radio altimeter issues are not resolved by then, we will likely see threats of legal action from the FAA compound.

Additionally, the lack of proper planning and implementation when it comes to improvements needed for the 5G spectrum could create problems for future generations of wireless. 6G will be rolling out before the start of the next decade and if appropriate actions aren’t taken by airlines now, they may be left clashing with wireless providers once again when it comes time to launch 6G. To prepare for these potential conflicts, those in the space should engage with wireless expert witnesses to inform their team on what’s to come in connectivity. WIT’s 5G expert team features electrical engineers, wireless industry insiders, software communication architects, and a myriad of technical experts ready to address every aspect of wireless litigation, licensing, valuation, and business advice.

Want more insight on this topic or what’s to come in 5G? Reach out to WIT for the best experts to inform your litigation strategy. Our expert teams were created to address what we expect to be the key areas of IP litigation in emerging technologies, like 5G/6G. Follow us to stay up-to-date on what is to come in the future of the wireless industry, and contact us to learn more about our partner briefings.

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