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.  
For example, AOPA defends FAA’s current accomplishments in the implementation of the “multiple runway” program at the nation’s busiest airports, whereby FAA supports development and use of new, more widely separated runways that allow reduced separation between aircraft because of approved wake turbulence impacts and, thus, increased operations in a shorter period of time.  
 
Similarly, AOPA points to the implementation of the performance based, or satellite based, navigation (“RNAV” and “RNP”) systems as ahead of schedule in several locations including Northern California (of course AOPA declines to mention the plethora of lawsuits challenging the implementation of the Northern California and other programs, some of which threaten to stay that implementation).  
 
Finally, AOPA supports its position by reference to the implementation of the System Wide Information Management (“SWIM”) Surface Visualization Tool ahead of schedule, purportedly allowing terminal radar (TRACON) controllers to better monitor congestion and more quickly react to requirements for changes of use on airport runways and taxiways, especially in less than favorable weather.  
 
Interestingly, and in an effort to quiet AOPA’s vocal concerns, the legislation contains various provisions aimed at ensuring the equitable treatment of private aircraft owners.  For example, while the corporation will be financed by user fees, § 90313(d)(7), the legislation prohibits the charging of fees for air traffic control services to “aircraft operations conducted pursuant to Part 91, 133, 135, 136 or 137 of Title 14 Code of Federal Regulations,” notably including general aviation which will continue to support the system through fuel taxes.  
 
H.R. 2997 has not yet been passed, so the entire debate may turn out to be academic.  It does, however, highlight the ongoing rift between two of the most influential segments of the aviation community (airport operators being the other) concerning the future management of the air traffic control system so vital to the entire aviation industry.

 

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.

First, the Bill requires the Secretary of Transportation to transfer operational control to the Corporation in a systematic and orderly manner that ensures continuity of safe air traffic services, § 90302(a).  Although the air traffic control system in the United States is notably complex, the Bill lacks any hint of what constitutes “systematic” or “orderly,” including timelines or a transition team.  In addition, § 90302(c)(3) allows the Corporation to subcontract to unspecified “entities” for the provision of air traffic services, further complicating the transition by adding another apparent layer of administration.  
 
The process for choosing the Directors of the Corporation is equally nonspecific.  While the legislation specifies various industry groups that compose the “nomination panels,” with responsibility for choosing the Directors of the Corporation, the only qualification to be a member of such a “nomination panel” is that the designee be a citizen of the United States.  No specific knowledge of business administration or air traffic control is required for appointment to a nomination panel to choose the Directors that will be controlling the air traffic system, § 90305(e).
 
This is important because the Board ultimately chosen by the nomination panels is then tasked with the job of choosing a Chief Executive Officer to manage the corporation.  The qualifications of the CEO are, however, as nonspecific as those required for membership on a panel to nominate him/her.  See § 90311(a)(1)(B) [“(B) QUALIFICATIONS.—The CEO shall be an individual who— (i) is a citizen of the United States; (ii) satisfies the qualifications to serve as a Director under section 90307; and (iii) by reason of professional background and experience, is especially qualified to manage the Corporation.”].  The so-called “qualifications” specified in § 90307 are, however, more in the nature of “prohibitions,” or limitations on the persons who may serve, and not “qualifications” in the sense of affirmative accomplishments related to the task for which the CEO is being appointed.  See § 90307(b)(2).  
 
Finally, while the Secretary of Transportation is tasked with “prescrib[ing] performance-based regulations and minimum safety standards for the operation of air traffic services by the Corporation,” § 90501(a)(1), FAA’s formal oversight of the Corporation’s implementation of those standards will last only two years after the date of transfer of responsibility, § 90501(b), eventually thereafter divesting the federal government of the plenary power it now possesses under the Federal Aviation Act as currently drafted.  See 49 U.S.C. § 40103(a).  
 
These inconsistencies and deficiencies have not escaped notice by a wide swath of the aviation community, including the Airline Owners and Pilots Association (“AOPA”) which perceives the legislation as a power grab by the airlines.  See § 90306(b) for the various groups included in the Corporation’s Board, three from various types and sizes of commercial airlines, and one from the universe of commercial pilots, while only two seats are awarded to general and business aviation.
 
What is certain is that the Corporation, if eventually approved by Congress, will become a political football, both in its establishment and, eventually, in its operation, hopefully, not at the expense of the safety of our nation’s skies.