The Privatization of Air Traffic Control Vigorously Opposed by General Aviation Groups

In an unusual divergence of opinion between aviation related organizations concerning progress in the operation and development of the national air traffic system, the Airline Owners and Pilots Association (“AOPA”), the nationwide organization of private aircraft owners, opposes the plan set forth in the 21st Century Aviation Innovation, Reform, and Reauthorization Act, H.R. 2997 (“AIRR Act”).  That plan calls for the air traffic control (“ATC”) system currently managed by the Federal Aviation Administration (“FAA”) to be removed from federal government control, and turned over to a 13 member, largely private, board, the dominant members of which are the nation’s commercial airlines.  See § 90305.  

The apparent rationale behind the shift, heavily supported by the commercial airline industry, is the consistent delays and resulting costs in fuel and efficiency that have been endemic to the ground based radar air traffic control system in effect since World War II.  The airline industry maintains that insufficient progress has been made in expediting operations to accommodate the increasing number of operations in the United States airspace.  The commercial airlines’ position is supported by the legislative purpose which is “to provide for more efficient operations and improvement of air traffic services.”  See § 201.  
 
AOPA, on the other hand, relies on examples of the disputed improvements in system management which it maintains undercut the airline industry rationale for pursuing privatization.  
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Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  
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Buchalter's Aviation Group Wins Major Victory in Ninth Circuit

On November 1, 2017, the United States Court of Appeals for the Ninth Circuit handed down a sweeping victory for Buchalter’s client Bonner County, owner and operator of Sandpoint Airport in Sandpoint, Idaho.
 
The airport was sued in 2012 by real estate developer SilverWing at Sandpoint, LLC for actions the county took in order to achieve compliance with federal aviation regulations and specific safety directives from the Federal Aviation Administration.  SilverWing sought tens of millions of dollars in damages under 42 U.S.C. § 1983 for alleged inverse condemnation and violation of equal protection in addition to a state law claim for breach of the covenant of good faith and fair dealing arising from a “through-the-fence” access agreement.
 
After prevailing on summary judgment in the U.S. District Court for the District of Idaho, Buchalter’s Aviation Practice Group, led by attorneys Barbara Lichman and Paul Fraidenburgh, won a complete victory in the Ninth Circuit on every issue across the board, including the affirmance of an attorney fee and cost award totaling almost $800,000 (which is likely to increase after appellate fees and costs are added).
 
With respect to the preempted state law claim, the Ninth Circuit held: 
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Connecticut State Statute Limiting the Length of the Runway at Tweed-New Haven Airport Resists Federal Preemption Challenge

Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock.  A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law.  Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR).  The Magistrate concludes that the state statute “does not interfere with plaintiff's ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate[] to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.  

The Court’s decision contravenes the plain face of the FAA Act for the following reasons:  
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Congress' Attempt to Transfer Air Traffic Control to a Private Corporation Leaves a Great Deal to the Imagination

Up against a September 30th deadline for the passage of legislation before its recess, Congressman Bud Shuster introduced the 21st Century Aviation Innovation, Reform, and Reauthorization Act (“21st Century AIRR Act” or “Act”), H.R. 2997.  Although somewhat obscured by its name and size (in excess of 200 pages), one of the central points of the Bill is the transfer of air traffic control responsibility from the Federal Aviation Administration (“FAA”) to a private sector corporation (“Corporation), i.e., privatization of the air traffic control system.  The Bill betrays the speed of its development through its lack of specificity on a number of critical issues.

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Update Your Airport's Hangar Leases to Protect Against Non-Aeronautical Uses and Preserve AIP Funding

Under federal law, airport operators that have accepted federal grants or have obligations contained in property deeds for property transferred under laws such as the Surplus Property Act generally may use airport property only for aviation-related purposes unless otherwise approved by the FAA.  Specifically, the Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97–248), as amended and recodified at 49 United States Codes (U.S.C.) 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use.  Grant Assurance 22, Economic Nondiscrimination, requires the sponsor to make the airport available on reasonable terms without unjust discrimination for aeronautical activities, including aviation services.  Grant Assurance 19, Operation and Maintenance, prohibits an airport sponsor from causing or permitting any activity that would interfere with use of airport property for airport purposes.  In some cases, sponsors who have received property transfers through surplus property and nonsurplus property agreements have similar federal obligations.

With increasing frequency, airports are allowing non-aeronautical storage or uses in hangars intended for aeronautical use, which the FAA has found to interfere with or entirely displace aeronautical use of the hangar.  Case in point: Car and Driver has recently featured articles about the superiority of airport hangars as “garages” for serious car enthusiasts.  This should be a red flag for airports, which stand to lose significant AIP funds for allowing on-airport hangars to lapse into non-aeronautical use.
 
There is only one solution to this problem, and it is something every federally-obligated airport should do to protect its AIP funds…
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Uber Flies High in FAA's Airspace

The Los Angeles Times reports that Uber, the ridesharing company, plans to extend its reach into the stratosphere by developing an “on-demand air transportation service.”  The plan appears to be that customers will use Uber’s surface transportation ride hailing system to hop a ride to a “vertiport” where an electrically powered aircraft will carry passengers to another vertiport at which they will be met by another phalanx of Uber drivers waiting to take otherwise stranded customers off the roofs of parking garages and into the traffic they supposedly avoided by using the proposed above ground transportation option.  

The purpose appears to be to allow customers to fly from one part of town to another.  Very creative, but shockingly absent all but one off-hand reference to the Federal Aviation Administration (“FAA”), and the federal government’s total dominance over the airspace of the United States, 49 U.S.C. § 40103(a), including the design and construction of airports, which definition includes “vertiports.” 14 C.F.R. § 157.2. 
 
Whether recognized or not, Uber’s scheme faces a host of questions, and potential regulatory objections, that range from the way in which such episodic operations will merge with the arrival and departure paths of conventional aircraft, to the noise of even electric aircraft operating over existing residential neighbors and pedestrians using city streets.  While these are, to a large extent, the same issues posed by the operation of unmanned aircraft, or drones, they are even more immediate in this case, because the proposed electric aircraft are larger, potentially louder, and, perhaps most importantly, impinge on conventional aircraft regulatory areas long controlled by the FAA.
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City of East Hampton May Be "A Day Late and a Dollar Short" in Challenging the Airport Noise and Capacity Act

The Town of East Hampton, Long Island has brought a challenge at the United States Supreme Court, seeking to reverse the November 4, 2016 decision of the United States Court of Appeals for the Second Circuit which invalidated East Hampton’s local ordinance prohibiting flights from East Hampton Town Airport between 11:00 p.m. and 7:00 a.m. and “noisy” aircraft flights between 8:00 p.m. and 9:00 a.m.  The Second Circuit decision was predicated on East Hampton’s purported failure to comply with 49 U.S.C. 47524(c), which limits the grounds upon which local operational restrictions may be imposed to those in which “the restriction has been agreed to by the airport proprietor and all airport operators or has been submitted to and approved by the Secretary of Transportation . . .”  In addition, Section 47524(d) contains six express exemptions from the limitations, none of which apparently applies to East Hampton. 

While East Hampton’s intent is noble, its cause is weak.  
 
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Congress Moves to Increase Judicial Oversight of Federal Agencies

On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.”  Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.”  That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies.  Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).  In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer...”  In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations.  Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order.  In Title II, the Congress has stood the current deferential standard on its head. 

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Two More Southern California Cities and an Airport Join Culver City in its Challenge to the FAA's Southern California Airspace Redesign

In an unusual alliance, the Southern California cities of Newport Beach and Laguna Beach, as well as Orange County, owner and operator of John Wayne Airport (“JWA”), joined with Culver City to challenge the adequacy of the Federal Aviation Administration’s (“FAA”) Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) for the Southern California Metroplex OAPM (“Project”).  The Project is a redesign of the approaches and departures to and from more than a dozen Southern California airports.  Its stated purpose is to enhance “safety and efficiency” by consolidating the various flight paths to and from these airports by using area navigation (“RNAV”), instead of ground based radar, which requires the use of “waypoints” that, in turn, require dispersion of the aircraft over large areas, and, consequently, the consumption of more fuel.  

The various challenges are generally based on similar issues.  
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