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.