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.  

Congressional Stalemate Persists over Air Traffic Control Privatization as FAA Reauthorization Deadline Approaches

The integration of cutting-edge aviation technology such as commercial drones and the modernization of our national airspace system are just a couple of the pressing aviation issues hanging in the balance this summer as Congress seeks common ground on FAA Reauthorization legislation.  

With the July 15, 2016 expiration of the current Federal Aviation Administration (FAA) authorization legislation rapidly approaching, congressional disagreement over a plan to privatize Air Traffic Control is preventing bicameral endorsement of a path forward.  
On April 19, 2016, the Senate passed its Federal Aviation Administration (FAA) Reauthorization legislation by an overwhelming margin of 95-3 (initially introduced as S. 2658 and later merged into H.R. 636). The Senate’s FAA legislation would reauthorize FAA programs through September 2017, and would focus billions of dollars and government resources on some of the most pressing aviation issues including the promotion of widespread commercial drone operations, bolstering airport security, and adding new safety systems in private aircraft. However, the Senate’s FAA Reauthorization legislation is arguably more notable for what it would not do than for what it would do. 

Namely, it would not privatize Air Traffic Control.  In the House of Representatives, the pending Aviation Innovation, Reform, and Reauthorization Act of 2016 would completely overhaul domestic Air Traffic Control operations by moving the operations out of the FAA to a non-profit corporation. If successful, the House bill would place approximately 38,000 Air Traffic Control employees, and the management of the safest national airspace system in the world, in the hands of a private corporation.  

Though the Senate and House bills share many commonalities, each passing day without congressional consensus brings mounting fears that the current efforts to modernize American aviation will devolve into an endless string of short-term extensions. The July 15 deadline has industry insiders calling for the House to adopt the Senate’s more measured approach to reauthorization and to table the Air Traffic Control overhaul until 2017.  

Privatization of the United States Air Traffic Control System Hits Roadblock in the U.S. Senate

Less than a month ago, it seemed clear that privatization was the wave of the future for the United States Air Traffic Control System (“ATC System”).  On February 19, 2016, the United States House of Representatives Transportation and Infrastructure Committee approved the Aviation Innovation, Reform and Reauthorization Act (“H.R. 4441” or “FAA Reauthorization Act”), the centerpiece of which was the establishment of an independent, nonprofit, private corporation to modernize the U.S. ATC System and provide ongoing ATC services.  The benefits of such “privatization” were seen to include less expense, less backlog in the implementation of air traffic control revisions, in essence, greater efficiency in the development, implementation, and long-term operation of the ATC System.  Central questions still remain, however, concerning the synergy of a private corporation’s management of the ATC System with the overarching statutory regime by which it is currently governed.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  

FAA Takes Two Important Steps During the Week of April 20

During the past week, the Federal Aviation Administration (“FAA”) has taken two actions likely to elicit “equal and opposite reactions” from the aviation community specifically, and the American public in general.  On the positive end of the spectrum lies FAA’s approval of a presumed cure for the dramatic malfunctions of the lithium ion batteries installed by the Boeing Company in place of the hydraulic system in the company’s 787 Dreamliner passenger jet.  This “fix” will allow Boeing to begin deliveries of the aircraft again after an FAA mandated hiatus since January 16, 2013.  At the extreme opposite end of the spectrum lies FAA’s decision to begin the furloughing of air traffic controllers, a move that has already precipitated the filing of petitions with the United States Court of Appeals for the District of Columbia Circuit by, among others, the aviation trade group for the nation’s airlines, Airlines for America, the Airline Pilots Association, and the Regional Airline Association.

On the one hand, FAA’s relatively swift treatment of Boeing’s lithium ion battery dilemma brought praise from aviation interests.  First, the agency worked with Boeing on its proposed plan, made public on March 14, whereby the company would reduce risk of fire by insulating and spacing out parts in each battery unit, reducing charge levels so the battery cannot overcharge or overheat, and reducing exposure to oxygen by enclosing the batteries in stainless steel cases.  In addition, FAA will require airlines flying 787s to install  the modified components; will assign teams of inspectors to modification sites; and has committed that it would not allow any modified aircraft to fly before being FAA approved.  The agency’s cooperation with Boeing in effectuating the fix will allow Boeing to begin delivery of its 890 orders for the 787 worldwide, thus enhancing Boeing’s and the American aircraft industry’s revenue prospects for the coming year with each $206-$243 million jet delivered. 

Quite different, however, was the aviation community’s reception for FAA’s decision to reduce its budget by furloughing air traffic controllers one to two days per two week pay period.  The predictions are dire, ranging from the entire national air transportation system coming to a halt, as predicted by the Airline Pilots Association, to delays “rippling across the air traffic system” with consequent damage to the resurging U.S. economy, as seen by Airlines for America. 

Apparently the problem has already begun.  As early as the night of April 21, a mere two days after the FAA’s decision, delays were endemic across the air transportation system.  For instance, at Los Angeles International Airport, numerous flights were cancelled leaving passengers stranded in the terminal, sometimes overnight.  The slowdown, however, was not unanticipated.  In terms reminiscent of the long gone, but not forgotten, Reagan era conflict between the Administration and air traffic controllers, the National Air Traffic Controllers Association, which represents about 14,700 of the nation’s controllers, made a thinly veiled reference to a potential slowdown in air traffic: “If we can’t safely operate a flight, it won’t go.” 

The decision to furlough the controllers apparently replaces FAA’s original decision to close 149 air traffic control towers at small general aviation airports throughout the United States, a move generally disfavored not only by controllers, but also by the airports that stood to lose the service.  The D.C. Circuit Court of Appeals has been asked to enjoin FAA’ s decision until the case can be presented to the court in its entirety.

In summary, these two FAA decisions, on vastly different topics, with vastly different areas of impact, illustrate how important, and pervasive, FAA decision making and regulatory control extends into the lives of the American public.

GAO Supplies Responses to Questions Posed at FAA Reauthorization Act Hearing

On March 10, 2009, the GAO made public its response to questions submitted for the record related to the February 11, 2009, hearing concerning  the FAA Reauthorization Act of 2009.  At that hearing, Dr. Gerald Dillingham, Director, Physical Infrastructure Issues, was asked a series of questions to which he replied that he would supply written responses at later date.  This document that GAO has now made public are those responses.

Most of the questions concerned NextGen, its implementation, and potential pitfalls that the GAO believes the FAA will encounter.

  1. How can the FAA provide incentives to get aircraft equipped to handle NextGen?
  2. Answer:  Through use of some combination of mandated deadlines, operational credits or equipment investment credits.  FAA has proposed a "best-equipped, best-served" program whereby FAA would offer those aircraft operators who choose to equip their aircraft as soon as possible with various operational benefits, such as preferred airspace, routings, or runway access.  Boeing has proposed a "reverse auction" in which federal investment tax credits would be combined with operational benefits.  This program, however would cost about $750 million annually over and above the cost of the implementation of NextGen.

  3. List of NextGen technology demonstration projects
  4. Answer:  See the next page for a table of the demonstration projects.

  5. Does the GAO distinguish between ATC Modernization and NextGen?
  6. Answer:  The ATC modernization program focused primarily on the acquisition of ATC systems. NextGen is a total transformation of the air transportation system, representing a paradigm shift from air traffic control to air traffic management. It is a shift from ground based radar control of aircraft to a satellite-based, aircraft-centric national airspace system.

  7. If Congress were to provide the level of funding outlined in the FAA's preliminary estimate, approximately $1 billion more through 2012 than the most recent Capital Investment Plan, would it help to accelerate the development and deployment of NextGen?
  8. Yes, if Congress provided FAA with additional funding, that funding could be applied to a variety of projects and initiatives that would help to accelerate the development and deployment of NextGen.

  9. Would additional funding help to bridge the so-called "NASA Gap?"
  10. The NASA gap has increased in recent years from both the previous administration's cuts to NASA's aeronautics research funding and the expanded requirements of NextGen.

  11. Additional research, development and deployment that could be done with funding over and above FAA's Capital Investment Plan funding levels?
  12. GAO found that avionics development and aircraft equipage are two areas that are critical and time sensitive for the implementation of NextGen and could be candidates for increased funding. In addition, additional funding for human factors to aid in the transition from "air traffic control" to "air traffic management" could be used to elucidate the new roles for all participants.


NextGen Demonstration Projects
Surface Traffic Management Provide situational awareness information to and data exchange among airport stakeholders using technology such as Airport Surface Detection equipment-Model X (ASDE-X) to support new decision support tools. Memphis, John F. Kennedy, and Orlando airports Airport authorities, FedEx, and Northwest Airlines
Surface Conformance Monitoring Begin to link the movement of aircraft on the surface between air traffic control and future cockpit moving map displays. TBD TBD
Arrival Management (Continuous Descent Arrivals, Tailored Arrivals) Use integrated automation tools and data communication to provide a cleared trajectory path, which is transferred to the aircraft and flown by the flight management system. Miami, Charlotte, Atlanta, Los Angeles, Charleston (SC), and San Francisco airports NASA Ames, Boeing, Sensis, American Airlines, Delta Airlines, U.S. Air Force Mobility Command, Georgia Institute of Technology, MITRE Corporation, and foreign carriers
Three-dimensional Path Arrival Management (3D-PAM) Will provide, at high-density airports, a means to achieve accurate, predictable, and fuel-efficient routes, which are designed to decrease controller and pilot workload, as well as decrease adverse environmental impacts (emissions and noise) while potentially enhancing airport throughput. Denver NASA Ames, Boeing
Ground Based Augmentation System (GBAS) Initially define and test Area Navigation/
Required Navigation Performance
(RNAV/RNP) approach routes into and out of Teterborough, and separate Teterborough traffic from Newark's traffic. Operational demonstrations will be conducted using satellite navigation (SATNAV) technology in a complex environment to assist in identifying and implementing RNAV/RNP operations for performance-based navigation.
Newark and Teterborough airports NY Port Authority and Continental Airlines
Oceanic Trajectory Based Operations (AIRE and ASPIRE) Demonstrate potential benefits for oceanic trajectory optimization in terms of fuel savings and emissions reductions. Atlantic and Pacific Oceans (beginning in fiscal year 2010) operational areas Boeing; CSSI, Inc.; MITRE Corporation; American Airlines; foreign carriers and European partners
International Flight Data Object (IFDO) Conduct research, development, and laboratory proof of concept of IFDO exchange using collaborative flight planning capability for oceanic and en route air traffic services. Daytona Beach Airport Lockheed Martin, Computer Sciences Corporation, Boeing, Harris, Adacel, and Nav Portugal
Four-Dimensional Flight Management System One of a series of joint demonstration projects aimed at promoting global air traffic control leadership and collaboration with research and development activities in other countries. TBD TBD
Unmanned Aircraft Systems (UAS) Examine potential for widespread integration of UASs into the future NextGen environment. Kennedy Space Center AAI Corporation, General Atomics, and GE
Network Enabled Operations Program Develop and leverage network information technology to provide an agile, highly connective network for net-centric shared situational awareness. TBD TBD
Staffed NextGen Towers Provide surface and tower services without the requirement for direct visual observation by air traffic control personnel from an airport tower cab. TBD TBD
Weather Integrated into Traffic Management Advisor and En Route Automation Modernization Research, evaluate, and demonstrate NextGen concepts, procedures,
technologies, and capabilities. Initial demonstration to show the incorporation of convective weather data into the Traffic Management Advisor tool to better maintain airport arrival rates.
Daytona Beach airport Embry-Riddle Aeronautical University; Lockheed Martin; Computer Sciences Corporation; ENSCO, Inc.


President Bush Issues Executive Order Pushing NextGen Forward

In a speech given yesterday to the Department of Transportation, President Bush stated that in:

an age when teenage drivers use GPS systems in their cars, air traffic controllers still use World War II-era radar to guide modern jumbo jets.  That doesn't seem to make any sense to me, and I know it doesn't make sense to the Secretary [of Transportation] and a lot of folks in this audience. Modernizing our aviation system is an urgent challenge.  So today, I'm signing an executive order that makes this task a leading priority for agencies across the federal government.

Since implementation and funding for the "Next Generation Air Transportation System" (NextGen) is contained in the FAA Reauthorization bill, which is stalled in Congress over issues like Acting FAA Administrator Bobby Sturgell's appointment to a full term, the East Coast Airspace Redesign, and Climate Change, Pres. Bush sought to take matters into his own hands by issuing an Executive Order.

The Fact Sheet that accompanied Pres. Bush's speech, claims that the Executive Order

. . . strengthens DOT's coordination with other Federal agencies. The EO will help transform the national air transportation system and effectively implement the NextGen Initiative (Next Generation Air Transportation System) that utilizes satellite-based guidance technology, which is safer, more secure, affordable, and environmentally friendly.

Although the Executive Order does set up a "Senior Policy Committee," and involves the Secretaries of Defense, Commerce and Homeland Security as well as the Secretary of Transportation, the Executive Order seems to be toothless without funding, which can only be supplied (to the extent that NextGen requires it) by Congress.  In essence, the Executive Order simply states that the Secretary of Transportation will take appropriate action to implement NextGen (as stated in Section 709 of Vision 100-Century of Aviation Reauthorization Act) and recommend action for the President to take.

As reported by AvWebBiz, according to Doug Church, spokesman for the National Air Traffic Controllers Association, "[The executive order] certainly appears like yet another new red bow on the same old box, which remains empty. Is the administration now saying modernizing our aviation system was NOT a leading priority up until today?"

President Bush also addressed several other aviation topics in speech:

  • Mentioned that the FAA will "start auctioning takeoff and landing slots at New York airports"in January, thus siding with the FAA over the GAO in the intra-governmental spat;
  • Suggested giving airlines incentives to "boost efficiency" and encourage them to use larger planes out of the New York area.
  • Mentioned that three new runways would be opening up this week at Seattle-Tacoma, Washington-Dulles, and Chicago O'Hare.
  • Completion of regulations that provide increased protection for consumers, specifically a measure that will require airlines to provide greater compensation for lost bags as well as tougher penalties when airlines fail to notify travelers of hidden fees.

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