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4 Air & Space Law. 1 (1988-1990)

handle is hein.journals/airspaclaw4 and id is 1 raw text is: Forum Committee on Air and Space Law American Bar Association Volume 4, Number 1 HE AIR AND SPACE LAI Summer 1988 Recent Airport Access Development at U.S. Airports BY LEONARD A. CERUZZI* First let me be very clear, these comments do not purport to be and do not necessarily represent the views of either the FAA or the United States; they are, for whatever they may be Worth, just my views. Second, they are not presented as an answLer but with the hope that they may serve as a stim- ulant, and perhaps a basis, for further discussion. It can be argued that, in addition to nature, govern- mental entities, whether federal, state, or local, abhor a vacuum, particularly a vacuum of legal authority. A cor- ollary to that premise is that whenever such a vacuum is identified or develops, one or more governmental or- ganization at any or every level is inclined to step in and exercise its authority, or at least what it perceives to be its authority. The Airline Deregulation Act of 1978 created just such a vacuum. Direct economic regulatory authority of civil aviation was extinguished. The Civil Aeronautics Board was abolished. Section 105 was added to the Fed- eral Aviation Act to prohibit any state or political sub- division or interstate agency or other political agency from enacting or enforcing any law, rule, regulation, stan- dard, or other provision having the force and effect of law relating to rates, routes, or services of any air car- rier ..... 49 U.S.C. 1305(a) Now a decade after economic deregulation became law, and the favored phrase maximum reliance on com- petitive market forces has become a cliche, the regula- tion of aviation persists. It takes different and more indirect forms, and is usually obscured and obfuscated, but it is there. A key element in and a source of the inherent strength of the air transportation system of the United States is the fact that the system is a product of shared responsibility among diverse interests. That is also the system's Achilles' heel and the source of the current in- direct regulation of aviation. The nature of the air transportation system makes it difficult to define or describe; however, the components of the system are not hard to identify. The federal gov- ernment provides both the regulatory framework appli- cable to airmen, aircraft, and providers of aeronautical services as well as the infrastructure of navaids, airways, and air traffic control services. Airports have been cre- ated, designed, developed and maintained by local gov- ernmental bodies with substantial federal and user financial support. The various users of these facilities range from air carriers to business aviation to general and recreational aviation. Included within the category of users are passengers and all those businesses who rely upon aviation in the process of conducting their busi- nesses. Operationally, the system is a dynamic entity in which it appears that the whole is not merely equal to but is greater than the sum of the parts. It is the inter- relationship between and among the component ele- ments of the system, not merely the components considered in and of themselves which compose the sys- tem. What we are now seeing is a growing disharmony within the system, a growing conflict between the com- ponent elements which compose the system. There are many different reasons for that disharmony and conflict. Frequently noise is the reason presented, but many times that is the excuse, not the reason. In any event, the per- ceived vacuum of authority and the tendency or incli- nation of one or more governmental organizations at any or every level to step in and exercise its authority, or at least what it perceives to be its authority, in the public interest, to fill that vacuum, suggests that the dishar- mony and conflict will grow rather than abate. Massport's PACE (Program for Airport Capacity Ef- ficiency) illustrates this point. PACE is presented by Massport an an exercise of its authority to respond to increasing passenger demand and what it considers to be unacceptable delays. The PACE program will limit use of the airport by general aviation and small com- muter airplanes while providing special exemption treat- ment for Massport designated locations provided certain other conditions are met. Massport's program has not been warmly received throughout the aviation commu- nity, and in fact is the subject of litigation in district court and formal administrative complaints presented to the FAA. The Boston-Logan Airport situation is further com- plicated by the complex three-tier Logan noise rules (continued on page 9) ER

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