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

 by Barbara E. Lichman, Ph.D., J.D.

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.  

H.R. 4441 does not directly address the issues of: (1) whether the Federal Aviation Administration (“FAA”) still have the final determination as to whether a change in the ATC System recommended by the corporation is “safe,” or will that determination also be left in private hands; (2) will the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.(“NEPA”), applicable to the analysis of the environmental impacts of projects sponsored by a federal agency, still apply to changes in the ATC System effectuated by a private corporation; and (3) will federal preemption of local airport noise and access restrictions, conclusively established in the Airport Noise and Capacity Act of 1990, 49 U.S.C. § 47521, et seq. (“ANCA”), apply to determinations by a private corporation?  

While many questions are left to be clarified, H.R. 4441 does explicitly answer at least one – it provides that federal preemption of local regulation of airline “prices, routes, and service,” originally established in the Airline Deregulation Act of 1978, 49 U.S.C. 41713(b), will remain in place.  

Finally, judicial review under the Act is applied differentially, depending on whether a challenge is to FAA’s grant of a proposal, or its denial.  FAA’s approval of a proposal made by the corporation would be subject to the “abuse of discretion” standard, and the deference normally accorded to a governmental entity charged with the administration of a program established by Congress, which is difficult to overcome.  FAA’s denial of such a proposal, however, likely to be challenged only by the corporation, would not be subject to such deference, making the path to a reversal and ultimate approval of the corporation’s recommendations smoother.  

Apparently, the Senate Commerce Committee recognized H.R. 4441’s many unanswered questions, as did the full House of Representatives which has held up approval and caused the House to enact an extension of the FAA’s funding reauthorization to July 15, 2016.  The Senate reacted by passing its version of H.R. 4441 without the privatization provision.  

This means that passage of the FAA Reauthorization must wait first until the issue is resolved internally in the House of Representatives.  Even if H.R. 4441 should emerge from the full House including the privatization provision, unless the full Senate should see fit to agree, a Conference Committee will be required and funding for the FAA could be delayed well past the current July 15, 2016 deadline.  

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