Lawyers Gain More Work

Air Safety Week, August 18, 2008

The Air Transport Association (ATA), which represents the top U.S. air carriers, has filed a lawsuit that seeks to block the Federal Aviation Administration (FAA) from auctioning off valuable takeoff and landing slots at major New York area airports.

And the Port Authority of New York and New Jersey, which manages the three New York City area airports, also vowed to block the auction plan, in the courts or in the Congress.

The right to operate a single roundtrip flight at Newark Liberty Airport would be auctioned for a five-year lease on September 3, as the first step in an experiment designed to ease nationwide travel delays caused by congestion in New York area airspace. Additional slot auctions would follow at Newark and New York's Kennedy International before the end of the year.

ATA said the action to auction slots are unlawful and outside of the FAA's authority.

"FAA's claim that it can use its property management authority to auction slots is intellectually dishonest and a disturbing end run around Congress," said ATA President and CEO James C. May.

"Every transportation administration except this one has acknowledged that it does not have the authority to implement auctions and other so-called market mechanisms. Yet this administration believes it can ignore the statutory limits of its authority to remake the industry as it sees fit.

"We said that we would challenge the FAA decision in a court of law and we are doing just that. Today we have started the process to protect our members' rights," added May.

ATA's lawsuit, a petition for review filed in the U.S. Court of Appeals for the District of Columbia, states that the FAA slot auction is, in effect, a final rule that "should be held unlawful and set aside because these actions are in excess of the FAA's statutory authority; constitute unauthorized regulatory action disguised as property management; are contrary to express statutory limitations imposed by Congress in the 2008 Consolidated Appropriations Act; are without observance of procedure required by law; and are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law."

"FAA's plan is not only unlawful, it is both surprising and perplexing. It is surprising because the end result will be more flights during the busiest times of the day at Newark, even as we suffer through yet another delay-plagued summer, and it is perplexing because the announced slot auction precedes formal rules to auction slots at Newark and other airports," said May.

"Sadly, FAA believes that it has the right to make up the rules as it goes along. FAA should focus its efforts on fulfilling its responsibility to provide the infrastructure and air traffic resources necessary to meet the public's demand for safe air transportation services, instead of finding new ways to inhibit economic growth and further tax an already overtaxed traveling public," the head of ATA added.

In strongly worded statement supporting the ATA's lawsuit, Regional Airline Association President Roger Cohen said major cities will be shut out of access to New York.

Meanwhile New York City Mayor Michael Bloomberg sent a letter to DOT Secretary Mary Peters and Port Authority of New York and New Jersey Executive Director Christopher Ward, saying he wanted the pilot program on slots implemented.

Bloomberg previously opposed the caps imposed by the Federal Aviation Administration on flights at the three New York City airports calling them ineffective and harmful to the New York economy..

"Someone has to stop the madness, and we hope the US Court of Appeals acts swiftly and decisively to prohibit this DOT scheme before only the rich and famous can fly into New York," said Cohen.

"Unless DOT gets stopped in its tracks, travelers from major cities such as Dayton, Indianapolis, Louisville, and Knoxville could get shut out of ever flying into the Big Apple, let alone the 70 percent of communities across the US whose only service is from regional airlines," he added.

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