The Impact of Airline Bankruptcies on Airports (2009)

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59 Appendix C—FAA Congestion Provisions The FAA has had several regulations and orders related to congestion management that are relevant to airline bankruptcy, insofar as they relate to the issue of ownership of takeoff and landing slots. These in- clude: • Air traffic rules for congestion reduction at Chicago O’Hare International Airport, under which arrival au- thorizations (slots) could be sold or leased only subject to FAA regulations. This regulation was scheduled to expire on October 31, 2008, and the FAA has confirmed it will not seek to extend flight caps at O’Hare. (14 C.F.R. 93.21-32; 14 C.F.R. 93.21(e); FAA Announces Elimination of Flight Caps at Chicago’s O’Hare Interna- tional Airport, June 16, 2008. Accessed June 23, 2008, at www.faa.gov/news/press_releases/news_story.cfm?newsId=10240. • FAA order on Operating Limitations at New York LaGuardia Airport, 71 Fed. Reg. 54331-54334 (Septem- ber 14, 2006). • The High Density Rule (HDR), which designated LaGuardia, Newark, O’Hare, National, and John F. Kennedy International (JFK) Airports as High Density Traffic Airports with limitations imposed by the FAA on takeoffs and landings at those airports. As of January 1, 2007, the HDR no longer applied to LaGuardia or JFK. (14 C.F.R. part 93, subpart K; Congestion Management Rule for LaGuardia Airport, SNPRM, 73 Fed. Reg. 20846, 20847 (April 17, 2008)). • Proposed rules for congestion management at LaGuardia, John F. Kennedy International, and Newark International Airports that would allow carriers to purchase a right to slots for up to 10 years without being subject to the minimum usage requirement. (Congestion Management Rule for LaGuardia Airport, SNPRM, 73 Fed. Reg. 20846 (April 17, 2008); Congestion Management Rule for John F. Kennedy International Air- port and Newark Liberty International Airport, NPRM, 73 Fed. Reg. 29626 (May 21, 2008). This proposal faces opposition from Congress and at least one airport authority has questioned the FAA’s authority to treat slots as property. See Sewell Chan, Debate Over Auctioning of Airport Landing Slots, New York Times Blog, June 18, 2008. Accessed June 23, 2008, at http://cityroom.blogs.nytimes.com/2008/06/18/debate-over- auctioning-of-airport-landing-slots/; Alexandra Marks, U.S. Plan to Ease Air Congestion Runs into Head Winds, The Christian Science Monitor, June 20, 2008. Accessed June 23, 2008, at www.csmonitor.com/2008/0620/p02s01-usgn.html. See also New York Aviation Rulemaking Committee Re- port, December 13, 2007. Accessed July 8, 2008, at www.dot.gov/affairs/FinalARCReport.pdf.) In its proposed congestion management rulemaking for LaGuardia Airport, the FAA took the position that “[c]arriers possess no absolute property interest in slots unless the FAA gives it to them.” Moreover, while the FAA acknowledges that airlines will have some property interest in any slots authorized by the FAA under the rulemaking, the FAA asserts “those rights will be limited by the terms of any final rule and any lease terms that the FAA specifies. Ultimately it is the FAA that controls the airspace and controls the rights of carriers to use it.” (Congestion Management Rule for LaGuardia Airport, SNPRM, 73 Fed. Reg. 20846, 20853 (April 17, 2008)).