Principles of State responsibility from a general context, and the various theories appurtenant thereto, which doubtless apply to the subject addressed in this article, have been addressed in some detail elsewhere
by Dr. Ruwantissa Abeyratne in Montreal
When in doubt, hold your altitude; nobody ever collided with the sky.
The Issue
On 19 January 2022 AT&T and Verizon started turning on their 5G service around the United States using newly acquired wireless spectrum in what's known as the C-band, thereby sparking a conflict of interest between the providers and the State. 5G is the next generation of wireless service, which is expected to increase network speeds and make them more responsive.
On the one hand the providers were interested in activating the 5G high-speed networks for their customers as the two telecom giants had reportedly spent $67 billion (collectively) on C-Band licenses and had planned to launch new 5G service in early January in many U.S. cities. On the other hand, the Federal Aviation Administration (FAA) – the United States regulator - warned that signals from telecom towers could interfere with key equipment in airplanes: “Because the proposed 5G deployment involves a new combination of power levels, frequencies, proximity to flight operations, and other factors, the FAA will need to impose restrictions on flight operations using certain types of radar altimeter equipment close to antennas in 5G networks”.
One media report stated: “At issue has been the possibility of interference with aircraft radio altimeters, which operate on the high end of the C-Band frequency. The altimeters measure the distance between a plane and the ground and are crucial for landing in low-visibility conditions like heavy fog, snow and rain and at airports near physical hazards like mountains or bodies of water”. A radio altimeter, or radar altimeter, is used to measure the distance from the aircraft to the terrain directly beneath it. It is used primarily during instrument approach and low level or night flight below 2500 feet. The radio altimeter supplies the primary altitude information for landing decision height. It incorporates an adjustable altitude bug that creates a visual or aural warning to the pilot when the aircraft reaches that altitude. Typically, the pilot will abort a landing if the decision height is reached and the runway is not visible.
Suzanne Rowan Kelleher, writing in Forbes says: “on December 30, Airlines for America, a trade group representing the airline industry, filed an emergency petition asking regulators to temporarily block the deployment. The petition cited an airworthiness directive issued earlier this month by the FAA, which deemed it unsafe to rely on cockpit safety systems in the presence of 5G transmitters in the C-Band. The agency warned that the 5G rollout would cause major inconveniences for the flying public. “These limitations could prevent dispatch of flights to certain locations with low visibility and could also result in flight diversions.”
It was reported that there was significant concern on the part of airlines operating into the United States: “the signals could disrupt aircraft altimeters used for landing in poor visibility, major international airlines, including Emirates, Japan Airlines and ANA, started canceling flights involving Boeing-made planes to several major US airports”. This action would have resulted in more than 1,100 flights and 100,000 passengers being subjected to cancellations, diversions, or delays.
CNN reported that in 2020 the International Air Transport Association (IATA) and the International Federation of Air Line Pilots' Associations (IFALPA) had warned: "[A]ny failures or interruptions of [radar altimeters] can ... lead to incidents with catastrophic outcome, potentially resulting in multiple fatalities." The airlines affected claimed that Europe had successfully obviated the problem of interference to aircraft equipment caused by 5G installations and that this approach could have easily been replicated in the United States. AT&T, with Verizon concurring, said: “We are frustrated by the FAA's inability to do what nearly 40 countries have done, which is to safely deploy 5G technology without disrupting aviation services, and we urge it to do so in a timely manner." The European Aviation Safety Agency (EASA) – responsible for the safety of aviation in 31 European countries - had said : “The technical data received from EU manufacturers offers no conclusive evidence for immediate safety concerns at this time. At this time, EASA is not aware of any in-service incidents caused by 5G interference."
The matter stabilized somewhat, when on 20 January FAA approved 78% of the U.S. commercial aircraft fleet to perform low-visibility landings at airports where wireless companies deployed 5G in the C-band. “The 13 cleared altimeters are found on a variety of commercial aircraft, including eight Boeing and eight Airbus models, as well as some Embraer 170 and 190 regional jets”.
The Responsibility
One has to begin with international treaty. Article 28 of the Convention on International Civil Aviation (Chicago Convention) devolves responsibility on the State to provide inter alia in its territory, airports, radio services, meteorological services, and other air navigation facilities to facilitate international air navigation, as well as to adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules. Annex 15 to the Chicago Convention (Aeronautical Information) provides that each State has to provide an Aeronautical Information Service (AIS) which will ensure that aeronautical data and aeronautical information necessary for the safety, regularity or efficiency of air navigation are made available in a form suitable for the operational requirements of the air traffic management (ATM) community, including: those involved in flight operations, including flight crews, flight planning and flight simulators; and the air traffic services unit responsible for flight information service and the services responsible for pre-flight information.
Annex 10 to the Chicago Convention (Aeronautical Telecommunications) in Volume I, provides an international Standard on the ground and flight testing of radio navigation aids.
The Annex divides aeronautical telecommunication services into four areas: aeronautical fixed service; aeronautical mobile service; aeronautical radio navigation service; and aeronautical broadcasting service . Standard 2.6 of the Annex is on interference and provides that before authorizing tests and experiments in any station, each administration, in order to avoid harmful interference, is required to prescribe the taking of all possible precautions, such as the choice of frequency and of time, and the reduction or, if possible, the suppression of radiation. Any harmful interference resulting from tests and experiments are required to be eliminated as soon as possible. Standard 5.4 of the Annex stipulates that the station addressed by an aircraft being subjected to an act of interference (of whatever nature), or first station acknowledging a call from such aircraft, are obligated to render all possible assistance, including notification of appropriate air traffic services units as well as any other station, agency, or person able to facilitate the flight.
Principles of State responsibility from a general context, and the various theories appurtenant thereto, which doubtless apply to the subject addressed in this article, have been addressed in some detail elsewhere (for instance, in the author’s article on exogenous interference with air navigation appearing in Air & Space Law). Article 28 of the Chicago Convention and the two Annexes discussed above) places responsibility squarely on the State to provide air navigation services, including radio and meteorological services. Therefore, safety of air transport must remain the ultimate responsibility of the State concerned and should not be compromised by political or other considerations.
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