Federal Aviation Administration (FAA)

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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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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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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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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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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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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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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‘Barbara Lichman’ ‘Barbara E. Lichman’ ‘Paul Fraidenburgh’ ‘Paul J. Fraidenburgh’ ‘Culver City’ ‘Newport Beach’ ‘Laguna Beach’ ‘County of Orange’ ‘Orange County’ ‘John Wayne Airport’ JWA ‘Federal Aviation Administration’ FAA ‘Environmental Assessment’ EA ‘Finding of No Significant Impact’ FONSI ‘Southern California Metroplex OAPM’ OAPM ‘SoCal Metroplex’ ‘area navigation’ RNAV ‘day-night average sound level; LDN ‘Cumulative Noise Equivalency Level’ CNEL ‘Noise Integrated Routing System’ NIRS ‘Aviation Environmental Design Tool’ AEDT
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Culver City has issued a Press Release announcing its intention to file a lawsuit against the Federal Aviation Administration related to aircraft overflights.  Culver City has retained Barbara E. Lichman, Ph.D. of the firm of Buchalter Nemer to represent it its challenge to the SoCal Metroplex Environmental Assessment ("EA") and Finding of No Significant Impact

Predictably, the Federal Aviation Administration (“FAA”) has weighed in strongly in opposition to the City of Santa Monica’s (“City”) plan to close the Santa Monica Airport (“Airport”) within the next two years.  The City, owner and operator of the Airport, plans to begin the process of closure, including cancellation and/or modification of leases held by various aeronautical service providers, such as providers of fuel, maintenance and hangar storage.  Those Airport incumbents are already paying rent on a month-to-month basis, subject to summary eviction. 

The apparent basis of Santa Monica’s position is that: (1) its obligation to maintain the airport is based solely on the terms of its contract with FAA for the provision of funding; and (2) according to its terms, that contract expires 20 years after the FAA’s last grant of funding.
 
The FAA’s position, obviously, differs dramatically.  The agency claims that, according to the terms of a $240,000 federal grant to the City in 2003, the City is obligated to keep the Airport open until at least 2023, see, e.g., FAA Order 5190.6B, Chapter 4, §§ 4.6.h(1) and (2).  Moreover, the FAA asserts that, under the terms of the transfer agreement governing the transfer of the airport property from the military back to the City after World War II, the City is obligated to keep the Airport open in perpetuity.
 


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