In a somewhat ironic twist on the Federal Aviation Administration’s (“FAA”) usual position, on March 26, 2018, FAA ruled in favor of the Town of East Hampton, New York (“Town”), proprietor of the East Hampton Airport, in a challenge by the National Business Aviation Association (“NBAA”) under FAA regulation 14 C.F.R. Part 16, to the expenditure of airport revenues in defense of the Town’s self-imposed airport noise and access restrictions.

The origin of that determination is equally anomalous.  In or about 2015, the Town enacted three local laws limiting aircraft noise at the airport, including restriction on: (1) access by “noisy” aircraft to only one arrival and departure per week; (2) mandatory nighttime curfew from 11:00 p.m. to 7:00 a.m.; and (3) an extended curfew from 8:00 p.m. to 9:00 a.m. on “noisy” aircraft.  
 
These local restrictions, however, directly contravene federal law set forth in the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq. (“ANCA”) which has, since 1990, affirmatively preempted local laws which impose: “(A) a restriction on noise levels generated on either a single event or cumulative basis; . . . (D) a restriction on hours of operation.”  49 U.S.C. § 47524(c)(A) and (D).  Predictably, East Hampton’s local regulations were successfully challenged in the U.S. Court of Appeals for the Second Circuit.  Ultimately, the Petition for Writ of Certiorari, seeking to overturn the Second Circuit’s determination, brought by the Town in the United States Supreme Court, was met with an equal lack of success, despite the Town’s powerful ally, the City of New York.  
 
Apparently, in a last ditch attempt to thwart any future initiatives to enact similar restrictions, the NBAA brought its fight to the FAA.  The gravamen of NBAA’s challenge was the Town’s alleged violation of its contractual obligation (as airport operator) to FAA pursuant to 49 U.S.C. § 47107(k), prohibiting “illegal diversion of airport revenue.”  That section includes, among other things, “(A) direct payments or indirect payments, other than payments reflecting the value of services and facilities provided to the airport.”  49 U.S.C. § 47107(k)(2)(A), see also 49 U.S.C. § 47017(b).  
 

Continue Reading FAA Supports the Right of Airport Sponsor to Use Airport Funds in Defense of Locally Enacted Noise Restrictions

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.  

Continue Reading The Privatization of Air Traffic Control Vigorously Opposed by General Aviation Groups

On or about November 16, 2017, the United States Senate acted speedily to pass the “National Defense Authorization Act for Fiscal Year 2018,” H.R. 2810 (“Defense Reauthorization Act”), originally introduced in January of 2017, and now awaiting signing by President Trump.  

The Senate’s motivation is not obscure, where it sets forth, among other things, guidelines for “Collaboration Between Federal Aviation Administration and Department of Defense on Unmanned Aircraft Systems,” or UAS, H.R. 2810, § 1092.  Most notably, that section re-imposes rules originally imposed on the operators of small, unmanned aircraft, weighing between .55 and 55 pounds, used for recreational purposes (“model” aircraft).  Those rules were set aside by the United States Court of Appeals for the District of Columbia Circuit in May, 2017, in the published opinion Taylor v. Huerta, 856 F.3d 1089, 1093 (D.C. Cir. 2017), on the ground that the FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95 (“FMRA”) specifically prohibits FAA from promulgating “any rule or regulation regarding model aircraft.”  Id. at § 336(a).  
 
Congress has now enacted a revision to FMRA’s prohibition, and thrown model aircraft back into the regulatory arena.  

Continue Reading Operators of Small Unmanned Aircraft Uses for Recreational Purposes Will Soon Face Regulation

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:  

Continue Reading Connecticut State Statute Limiting the Length of the Runway at Tweed-New Haven Airport Resists Federal Preemption Challenge

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.

Continue Reading Congress’ Attempt to Transfer Air Traffic Control to a Private Corporation Leaves a Great Deal to the Imagination

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. 
 

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

Airports and airlines across the nation last week welcomed the introduction of two bills aimed at alleviating mounting congestion in airport security lines by increasing TSA efficiency and reallocating billions of dollars in security fees paid by passengers.
 
The FASTER Act (H.R. 5340) is aimed at ensuring passenger security fees are used for aviation security, according to a statement released last week by Rep. Peter DeFazio, Ranking Member of the Transportation and Infrastructure Committee.  Since 2013, the federal government has diverted billions in funds collected from the 9/11 Passenger Security Fee away from aviation and into general government spending.  “At airports across the country, people are forced to wait in long security lines like cattle, causing many to miss their flight,” said DeFazio.  “To add insult to injury, funding to help fix the wait times exists – it’s just being diverted. I doubt most passengers know that a portion of the security fee they pay with every flight is being used for other purposes.  With peak travel season starting this weekend, Congress needs to direct all of the designated funds towards the intended purpose in order to improve the efficiency of airport screening and keep passengers safe.”
 
A second piece of legislation, introduced last week by Homeland Security Subcommittee on Transportation Security Chairman John Katki (R-NY), named the bipartisan Optimization and Efficiency Act of 2016, is aimed at reducing long airport security lines by efficiently reallocating TSA staffing and resources.  “Travelers are frustrated with TSA’s bureaucracy – facing longer lines, and in some cases, missing flights and having to return home or stay overnight in the airport,” said Representative Katko in a statement.  “This is a crisis that must be addressed before we head into the busy summer months of travel.  Today, I’ve introduced legislation which takes the first step in requiring greater coordination between the TSA and local airports so that we can relieve congestion and ensure that travelers are able to make it to their destinations on schedule.”
 
The new bills were introduced amidst a flurry of requests last week by Homeland Security seeking Congressional reallocation of over $60 million to TSA for the expedited hiring of screeners and overtime pay for current security staff.
 
Though these new measures were received with applause by the vast majority of the aviation industry, it remains to be seen whether the effects of additional funding and increased efficiency will be realized in time for the fast-approaching summer travel season.

On March 17, 2016, the Commerce, Science and Transportation Committee of the United States Senate approved amendments to the most recent funding legislation for the Federal Aviation Administration (“FAA”), the FAA Reauthorization Act of 2016, that, among other things, appear to preempt to preempt local and state efforts to regulate the operation of unmanned aircraft systems (“UAS” or “drones”).  

Federal preemption is the displacement of state and local laws which seek to govern some aspect of a responsibility that Congress views as assigned by the Constitution exclusively to the federal government.  Preemption by statute is not uncommon in legislation dealing with transportation, and its relationship to interstate commerce.  For example, the Airline Deregulation Act of 1978, 49 U.S.C. § 41713, specifically “preempts” local attempts to control “prices, routes and service” of commercial air carriers by local operators or jurisdictions.  Similarly, the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”) preempts local efforts to establish airport noise or access restrictions.  The Senate’s current amendments, however, appear, at the same time, broader in scope, and more constrained by exceptions than previous legislative efforts.  They also hit closer to home for the average American concerned about the impact on daily life of the proliferation of UAS for all uses, including, but not limited to, the delivery of packages.  
 

Continue Reading Senate Version of Federal Aviation Administration Reauthorization Preempts Local Drone Regulations

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.  

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

In what looks like a swap of increased capacity for reduced hours of operation, brokered by Representative Adam Schiff, the City of Burbank has offered the Federal Aviation Administration (“FAA”) a 14 gate replacement terminal at Bob Hope Airport (“Airport”) in return for which the FAA is being asked to approve a mandatory nighttime curfew from 10:00 p.m. to 7:00 a.m.  

What makes this potential deal especially unusual is that in the years since the passage of the Airport Noise and Capacity Act of 1990, 49 U.S.C. §§ 47521-47534 (“ANCA”), the FAA has never agreed to the enactment of a limitation on hours of operation at any airport.  It is true that some airports which had preexisting limitations on hours of operation, such as John Wayne Airport in Orange County, California, were allowed to retain those limitations as exceptions to the constraints of ANCA.  See 49 U.S.C. § 47524(d).  However, as recently as 2009, the FAA maintained its standard position that a mandatory curfew was not reasonable and would “create an undue burden on interstate commerce.”  However, under ANCA, § 47524(c), the FAA has the power to approve a restriction that might otherwise be regarded as violative of the Airport’s contractual obligations to the FAA.  See, e.g., City of Naples Airport Authority v. FAA, 409 F.3d 431 (2005).  Thus, given the quid pro quo of a new 14 gate passenger terminal to enhance passenger access as well aircraft mobility; and the already existing voluntary curfew of the same scope; it is not inconceivable that the FAA may take the hitherto unprecedented step of allowing a mandatory curfew, where none had previously been permitted.  
 
This negotiated outcome would sidestep the failure of Congressman’s Schiff’s efforts to enact a curfew at the federal level which effort made it to the floor of the House of Representatives in 2014 only to be rejected by a margin of four votes.  In the final analysis, the FAA’s willingness even to discuss a curfew may signal a reversal in attitude which could serve the interests of airport impacted communities throughout the nation.