Federal Aviation Administration (FAA)

If there is anything to be learned from the FAA’s distribution of the $10 billion in funds allocated to airports in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, it is that allocating billions of dollars in just a few weeks is more difficult than it sounds. On March 27, 2020, the CARES Act was signed into law as Public Law No. 116-136. The CARES Act is aimed at mitigating the effects of the COVID-19 pandemic on most segments of American business and infrastructure. Title XII of the Act specifically supports airports by directing the FAA to make $10 billion available based on each airport’s level of operations and debt. However, when it came to calculating each airport’s share of the pie, the FAA botched the process by employing a formula that allocated massive amounts to some smaller airports while snubbing larger, busier airports.

In April, the FAA attempted to correct the problem by capping each airport’s CARES Act funding at four times the airport’s annual operating budget. The FAA then issued guidance stating that grant funds not used within four years are “subject to recovery by the FAA,” and designated a four year “period of performance” pursuant to 2 C.F.R. section 200.309. In other words, if you don’t use it, you lose it. But just as the FAA has experienced hiccups distributing the grant funds, airport sponsors will inevitably encounter thorny regulatory issues as they attempt to spend millions of dollars in new grant funding while navigating their compliance obligations under the CARES Act. This begs the question, “What are permissible uses of CARES Act grant funds by airport sponsors?”


Continue Reading Permissible Uses of CARES Act Grant Funds by Airport Sponsors

In a somewhat unsubtle attempt to implement the current Administration’s 2017 Executive Order “Enforcing the Regulatory Reform Agenda,” allowing federal agencies to simplify their regulatory mandates, the Department of Transportation (“DOT”), on behalf of its subsidiary agency the Federal Aviation Administration (“FAA”), has instead thrown complex and expensive regulatory/legal hurdles in the path of consumers who attempt to enforce the provisions of current protective regulations. Specifically, the DOT published, on February 28, 2020, in the Federal Register, a Notice of Proposed Rulemaking (“NPRM”), that purports to simplify “definitions of the terms ‘unfair’ and ‘deceptive’ in the Department’s regulations implementing its aviation consumer protection statute.” See 85 Fed.Reg. 11881. The devil, however, is, as usual, in the details.

Continue Reading FAA Seeks to Free Airlines from “Burden” of Consumer Protections

Passengers seeking to travel with their service animals in the main cabin may soon face new restrictions from airlines, as the Department of Transportation (“DOT”) recently published a Notice of Proposed Rulemaking (“NPRM”) to alter existing DOT regulations. 85 Fed. Reg. 6448 (Feb. 5, 2020). The NPRM represents DOT’s latest effort to carry out the Air Carrier Access Act of 1986, 49 U.S.C. § 1705 (“ACAA”), which prohibits air carriers from discriminating against a qualified individual on the basis of physical or mental impairment. The NPRM arises, in part, from DOT’s stated desire to harmonize its regulations with rules promulgated by the Department of Justice to implement Titles II and III of the American’s with Disabilities Act.

Continue Reading DOT Proposes New Regulations on Service Animals in Air Travel

Many communities rely on Congressional representation to establish lines of communication with the Federal Aviation Administration (“FAA”) because communication with federal agencies in general and FAA particularly is difficult for the public at large. That reliance may have been overly optimistic as can be seen in a response from FAA (“Response”) to a letter from Congressperson Eleanor Holmes Norton representing the Congressional Quiet Skies Caucus (“Caucus”). In the Response, the new Administrator of the FAA betrays a substantial misunderstanding of the agency’s role in its interaction with both airports and the public.

The Caucus was established principally to articulate to the FAA the interests of noise and air quality impacted communities throughout the nation. While the examples used by the Caucus in its letter are substantially oriented toward East Coast concerns, the issues overlap with those of other communities, including the impacts of NextGen, the reorganization of arrival and departure paths at airports based on new technology, which has consolidated flight paths over previously unimpacted communities in the name of “safety” and “efficiency.”

The FAA’s misunderstanding becomes obvious on the first page of its Response, where FAA takes the position that it is powerless to influence the factors that are the primary cause of airport noise, such as numbers of people that want to fly, and goods that must be delivered by air, thus necessitating more air traffic. While that may be true with respect to demand for air travel, it is patently untrue with respect to supply.


Continue Reading Quiet Skies Congressional Caucus Gets Brush Off from FAA

The concern of the Federal Aviation Administration (“FAA”) regarding the use by airport operators of airport generated revenues to soften budget shortfalls off the airport appears to be growing. In a speech delivered at the November 11, 2019 National Air Transportation Association Leadership (“NATA”) Conference, Kirk Shaffer, FAA’s Associate Administrator for Airports, solicited the assistance of the aviation community in working with jurisdictions on compliance. Mr. Shaffer went on to opine that jurisdictions that operate airports are sometimes unaware of the laws governing revenue diversion, or confused by revenue flows, particularly as related to state and local taxes. He illustrated the problem by sharing the fact that, of the 177 jurisdictions with which the FAA has worked over the past five years on revenue diversion issues, 107 still remain noncompliant.

That number of noncompliant jurisdictions is somewhat surprising as the rules governing the use of airport revenues from airports are fairly explicit. The general rule is that revenues generated by a public airport may only be expended for the capital and operating costs of: (1) the airport; (2) the local airport system; or (3) other facilities owned or operated by the airport operator and directly and substantially related to the air transportation of passengers or property. 49 U.S.C. §§ 47107(b)(1) and 47133(a). The use of airport revenue for purposes other than airport capital or operating costs is generally considered “revenue diversion” and is prohibited by federal law. See Policy and Procedures Governing the Use of Airport Revenue, 64 Fed.Reg. 7696, 7720 (February 15, 1999) (“Revenue Policy”). Airport revenues subject to the revenue use requirements include all fees, rents, charges, or other payments received from anyone who makes use of the airport and from the airport sponsor’s activities on the airport. Id. at 7716.

The third prong provides unique revenue allocation opportunities to airport sponsors that own or operate other facilities.


Continue Reading FAA Focuses on Controlling Revenue Diversion

In a decision of October 21, 2019, the Federal Aviation Administration (“FAA”) defied its own regulations, federal law, and logic in determining that the City of Santa Monica had properly expended airport revenues in the demolition of 3,500 feet of the runway at Santa Monica Municipal Airport (“SMO”), for the express purpose of limiting access by turbojet aircraft.

In its decision, FAA stated “[w]e conclude that airport revenue may be used to fund the payment removal, pavement pulverization, and hydro-seeding project, including the work within the Runway Safety Area, at SMO. The removal of the subject pavements, pavement pulverization and reuse, and the soil stabilization at SMO appears justified as an airport operating cost.” [Emphasis added]. Existing law and governing regulations would, however, appear to lead to the contrary conclusion.


Continue Reading FAA Ignores Its Own Regulations in Allowing Expenditure of Airport Revenue to Demolish Runway at Santa Monica Municipal Airport

The Federal Aviation Administration (“FAA”) relies on the mantra “safety is our business, our only business” where, for example, justifying changes in aircraft flight paths over heavily populated residential communities. But is that reality? Not according to the Office of Inspector General, U.S. Department of Transportation (“OIG”) report of October 23, 2019, Department of Transportation’s Fiscal Year 2020 Top Managerial Challenges (“OIG Report”), when dealing with members of one of FAA’s primary constituencies, the aircraft manufacturers.

Specifically, the OIG Report highlights significant “challenges FAA faces in meeting its safety mission,” p. 1. Most notable is the correction of its lax oversight of aircraft certification procedures as graphically demonstrated by the recent deaths of 346 people in two separate crashes of Boeing’s 737-Max 8 aircraft, at least preliminarily thought to have been caused by systemic malfunctions in computer systems designed and installed by Boeing but never disclosed to operators.

Continue Reading DOT Inspector General Finds “Challenges” in Achievement of FAA’s Safety Mission

In its report of September 27, 2019 the National Transportation Safety Board (“NTSB”), although acknowledging the need for Boeing to “fine tune” its technology to prevent the Maneuvering Characteristics Augmentation System (“MCAS”) from automatically repeating and sending a plane into uncontrolled dives, NTSB focused more on pilots “confusion” in responding to multiple alarms caused by the malfunction in the MCAS system control sensors. NTSB then followed up by issuing seven recommendations calling on the Federal Aviation Administration (“FAA”) to update how it assumes pilots will react in emergencies and make aircraft more “intuitive” when things go wrong, in an effort to ensure that “average pilots” can respond to complex emergencies.

The Joint Authorities Technical Review Panel, made up of experts from the FAA, the National Aeronautics and Space Administration (“NASA”) and nine other regulatory agencies from around the world, in its report of October 12, 2019 (“Joint Authorities Report”), reached a dramatically different conclusion. It instead took FAA to task for failing to follow its own rules, using out of date procedures, and lacking the expertise to fully explore the design changes for the aircraft implicated in the two crashes.


Continue Reading The National Transportation Safety Board Report Mutes Criticism of the 737 Max Aircraft Design

In a June 19, 2019 hearing of the United States House of Representatives Subcommittee on Aviation, representatives of pilots’ organizations directly involved in, and affected by, the structural issues identified in the Boeing’s 737 Max aircraft, that caused the tragic deaths of 346 passengers, called The Boeing Company (“Boeing”), and its federal regulatory partner, the Federal Aviation Administration (“FAA”) to account in no uncertain terms.

Daniel Carey, a 35 year career American Airlines Captain, and President of the Allied Pilots Association (“APA”), testified as to what pilots regard as the fundamental issues with oversight by FAA.

Carey opines that the disasters arose from two fundamental problems: (1) the addition of the Maneuvering Characteristics Augmentation System (“MCAS”) without additional training, or even notification to pilots of its existence; and (2) failure of the requisite oversight by FAA. First, in an effort “to minimize the operating costs to Boeings customers by allowing the Max to be certified by FAA as a 737,” rather than requiring additional procedures that might be required for a substantial variation from the original 737 design, “this lead Boeing’s engineers to add the MCAS system.” Also according to Carey, many additional mistakes were subsequently made by Boeing engineers.


Continue Reading Pilots Take Boeing and FAA to the Woodshed in Testimony on the 737 Max Tragedies